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2017-03-09 HEX DECISIONMarch 9, 2017 CITY OF BAINBRIDGE ISLAND, WASHINGTON HEARING EXAMINER REPORT AND DECISION ON VEGETATION MANAGEMENT AND SEPA APPEALS Proceeding: Rich Vegetation Management and SEPA Appeals File number: PLN50468 Appellants: Crystal and Yurie Rich Location: 8236 Sands Avenue FINDINGS OF FACT 1. Site Characteristics Tax Assessor Information Tax Lot Number 222502 -3- 013 -2008 Owners of Record Crystal and Yurie Rich Lot Size 6.98 acre Land Use Single- family residential Terrain Gentle slope down east to west Soils Ka owsin gravelly sandy loam Existing Site Development None Access Sands Road/Quail Hill Road Public Services and Utilities None Zoning /Comprehensive Plan R -0.4 Designation Surrounding R -0.4 Zoning /Comprehensive Plan Designation Surrounding Uses Single- family residential p1rQVedural History 2. A vegetation management permit is required by City codes for removal of over 5,000 board feet of timber on a property proposed to be converted to non - forestry uses. The Riches are proposing to APPEALS DECISION - 1 clear the majority of the trees on their 6.98 -acre lot to allow for future residential and agricultural uses. The applicants submitted a vegetation management permit application on June 21, 2016. 3. The Rich project was subject to review under the State Environmental Policy Act (SEPA) and the applicants submitted a SEPA checklist. Using the optional DNS process provided in WAC 197 -11- 355, the City issued a combined Notice of Application/SEPA comment period on July 1, 2016. Several neighbors requested information about the application. One public comment was received, signed by ten residents of NE Quail Hill Road adjacent to the site on its south, expressing concern about the existing road conditions, ingress and egress, road drainage, access from Sands Road and the overall feasibility of using NE Quail Hill Road as a haul route. 4. After performance of a Department of Planning and Community Development (PCD) staff report dated December 20, 2016, the City's Planning Director in his capacity as SEPA responsible official issued a combined administrative decision and SEPA Mitigated Determination of Nonsignificance (MDNS) on December 22, 2016, approving the vegetation management permit subject to six MDNS and nine project conditions. The applicants filed a timely appeal of one SEPA condition (condition no. 1) and three project conditions (condition nos. 7, 12 and 13). 5. On behalf of the appellants, Attorney Dennis Reynolds also moved to reschedule the combined hearing on the appeals to an expedited date. The appellants asserted that they had already experienced an unwarranted level of delay resulting from the City's prolonged review process, with the consequence that once manageable seasonal deadlines for going forward with their project were now being jeopardized. The City opposed the appellants' motion based on the contention of a minimal benefit to be gained compared to the inconvenience caused by rescheduling, arguing that meeting code notice requirements for a public hearing would preclude rescheduling the hearing more than a few days earlier than the February 22, 2017, date already set. 6. The Examiner denied the motion for an earlier hearing date, agreeing with the City that at most an inconsequential few days would be gained by rescheduling the hearing as appellants requested because of the notice requirements, including one for publication that must be met for the SEPA appeal. 7. The consolidated appeal hearing was thus held as originally scheduled on February 22, 2017. The record was left open until March 1, 2017, for the receipt of further legal briefing. Mr. Reynolds also requested that the record note that an offer of proof was made by the appellants for the admission of a written declaration executed by Diane Fish. This declaration was objected to by the City and not admitted as a hearing exhibit by the Examiner due to its being largely comprised of hearsay opinion. The Chailenged SEPA Condition 8. The regulations governing potential offsite discharges of polluted waters have interrelated federal, state and local components. The City regulates stormwater discharges from all new development primarily through application of the State Department of Ecology's 2005 Stormwater Management Manual for Western Washington ( "the manual "), which has been adopted by reference at BIMC 15.20.050.A. 9. Relevant code specifications for coordinating local and state stormwater regulations are also found at BIMC 15.20.040.A. I (Regulated Activities), which provides as to new development proposals APPEALS DECISION -'2 that "[c]onsistent with the minimum requirements contained in the manual, the administrator shall approve or disapprove the following activities:... a. Land disturbing activities;... d. Class IV general forest practices that are conversions from timber land to other uses..." 10. BIMC 15.20.030.B further recognizes that in some instances the primary role in the coordinated regulatory stormwater review will be played by the affected state agency, not by the City: The following agencies may also require a drainage review to assess a site's impact. Any requirements imposed by these agencies are separate from the city mandates. It is the applicant's sole responsibility to resolve any conflicting issues that may arise from submittal reviews... 4. Washington State Department of Ecology: general permit is required for sites that disturb one acre or more... 11. Volume II of the 2005 DOE Manual deals in detail with Construction Stormwater Pollution Prevention. The introduction to the discussion of regulatory requirements within Chapter 2 opens with a summary that includes the following: Construction site stormwater runoff is regulated on the local level and at the State level. The Puget Sound Water Quality Management Plan requires communities in the Puget Sound Basin to adopt ordinances implementing controls for new development and redevelopment, including measures for control of erosion, sedimentation, and other pollutants on construction sites.... • Construction projects must apply for coverage under the NPDES General Permit for Stormwater Associated with Construction Activities if • — the project results in the disturbance of one or more acres of land area, including clearing, grading, and excavation activities, and • — the project discharges stormwater from the site into a surface water or discharge to a storm drain system that discharges to a surface water. • Some construction projects may require an individual NPDES permit. As specified at Section 1.6.9 in Volume I of the DOE Manual, the trigger for the requirement of an individual Construction Stormwater Permit is a proposal to disturb five acres or more. 12. Finally, "surface water" is a key term of regulatory art that in its full form refers to "surface waters of the state ". WAC 173- 220 -030 (21) defines this term as follows: "Surface waters of the state" means all waters defined as "waters of the United States" in 40 C.F.R. 122.2 that are within the boundaries of the state of Washington. This includes lakes, rivers, ponds, streams, inland waters, wetlands, ocean, bays, estuaries, sounds, and inlets. There appears to be a regulatory consensus that ditches and drainages discharging to streams, lakes and salt water bodies that are "surface waters of the state" should themselves also be regulated under the same standard. 13. To summarize with respect to the Rich property, the timber conversion proposal is being regulated by the City for stormwater impacts both as a land disturbance activity and a Class IV APPEALS DECISION - 3 conversion forest practice and by DOE through a NPDES permit as a project that both will clear more than five acres and release stormwater offsite into a conveyance system that discharges into a surface water of the state. The only element of this regulatory menu that appears controversial within this proceeding is the matter of whether any flows generated during the project timber harvest phase in fact would discharge offsite to surface waters of the state. 14. A drainage plan dated November 11, 2016, was performed for the Riches' project by civil engineer Kelsey Laughlin of Seabold Engineering LLC and submitted to the City. The plan described runoff leaving the site toward the west and entering a downstream conveyance system consisting of roadside ditches along Sands Road that transport flows south to High School Road. After taking a slight jog to the west, the flows are described as again heading south across a number of parcels before entering into an unnamed creek that "eventually discharges to the headwaters of Eagle Harbor approximately 4,900 -ft from the site." 15. Based on onsite testing depicting sandy soils, the drainage plan also set forth a proposal for infiltrating site runoff within a bioretention cell capable of accommodating as much as 92% of peak flows before overtopping and releasing to the roadside ditch system. The City's development engineer, Janelle Hitch, approved the Seabold study's findings and issued her recommended project conditions, including the contested MDNS requirement that a "general NPDES construction permit from the Washington State Department of Ecology (DOE) must be obtained by the applicant prior to any clearing, vegetation removal, or vegetation disturbance on the property." 16. It appears undisputed that both Ms Laughlin's characterization of the stormwater conveyance system downstream from the property and Ms Hitch's subsequent review of it were based on standard topographical data resources and not actual physical inspections of the downstream flow path. Crystal Rich has walked the Sands Avenue portion of the downstream system and taken pictures of it, concluding that runoff discharged from the site would travel south from the site in the roadside ditches to a low spot where all flows would be infiltrated either in the ditch or on adjacent parcels. Her view was that as a consequence no site flows would ever enter into the unnamed stream described in the Seabold report and be discharged to Eagle Harbor. Ms Laughlin did not testify at the hearing and is apparently no longer associated with the project. 17. The Riches have already obtained the general NPDES construction permit required by the SEPA condition but now want to withdraw from it. The permit would require flow monitoring with 24 hours after a storm event during the site clearing phase to determine whether polluted flows are indeed leaving the property. Ms Rich has convinced herself that such monitoring would be an onerous requirement because it would need to be performed by a hired certified inspector. 18. The facts do not support Ms Rich's position. The site can be logged, stabilized and replanted within about a six week window, which may (and probably should) be done in the dry season. If the process is completed without significant rainfall occurring, no inspections would be mandated. If a significant storm event occurs during the period when the site has been disturbed but not yet stabilized, the risk of sediments leaving the site would need to be assessed because of the potential for serious offsite harm resulting from an uncontrolled release. Logging is an imprecise art, and one cannot categorically assume that no impacts will occur if a storm arises during the time frame when the site is opened up. 19. It is certainly possible that Ms Rich is correct in her non - professional assessment of that downstream flows from her property infiltrate completely before reaching the unnamed stream. But there is a right way and a wrong way to go about trying to establish that, and Ms Rich has unfortunately APPEALS DECISION - 4 chosen the latter. Firing your drainage engineer and then attempting to impeach her conclusions at an appeal hearing will not prove to be a satisfactory approach if you are yourself neither an expert with the requisite training for making a credible technical assessment nor able to reliably establish independent facts in support of your position. 20. Ms Rich's photographs and supporting testimony illustrated her argument but were evidentially inconclusive. A lay opinion on a disputed key technical issue will not satisfy the burden of proof imposed upon a SEPA appellant. But the good news is that the MDNS condition at issue can be revised to incorporate current information and clarify the relationship between the City and DOE. The City's role is simply to trigger the NPDES process based on the existence of certain threshold facts, with the responsibility for making the ultimate permitting evaluation resting with the state agency. However, if the requirement for an NPDES permit is indeed later vacated by DOE, the City should be availed an opportunity to supplement its drainage conditions to compensate for any requirements omitted in reliance on DOE enforcement. The Challenger) Project Conditions 21. The project conditions attached to the City's approval of the vegetation management permit that have been challenged by the appellants are the following: 7. A 25 -foot nonfarmed buffer must be provided along the entire perimeter of the property. In accordance with the Director's code interpretation (Attachment H), all trees and existing vegetation shall be retained within areas designated as a "nonfarmed buffer" with the exception of the construction entrance. 12. The applicant's farm plan, submitted with this application, shall be implemented within one year after the completion of the conversion harvest. The applicant shall report the implementation of the farm plan when complete to PCD, and it shall be inspected and verified by PCD. An extension of up to one additional year may be granted if necessary for full implementation. Should the owner /applicant fail to implement the farm plan as required, this permit approval shall be revoked pursuant to BIMC 16.22.097, and revegetation and fines as described in that section shall apply. 13. All residual forest areas, including the 25 -foot nonfarmed buffer, shall be retained in windfirm condition pursuant to BIMC 16.22.060.A.3. Prior to commencing any clearing activity, the applicant shall provide verification to PCD from a consulting arborist certified by the International Society of Arboriculture (ISA) that the retained vegetation on the site will remain in windfirm condition after the clearing activities proposed have been completed. The dimensions of the nonfarmed buffers shall be increased and/or additional planting required as a result of the arborist's recommendations to ensure a windfirm condition. The buffer shall not be reduced below the 25 -foot requirement as a result of the arborist's recommendations. 22. BIMC Chapter 16.22 governs the issuance of of vegetation management permits and specifies applicable approval standards and mandated permit components. The issues raised within this segment of the appeal mainly deal with interpretation of the Chapter's requirements. The following code provisions include those of primary concern and the relevant regulatory context: 16 22.010 Findings and declaration of purpose. A. Forest areas are an integral part of the Island character and enhance the city's appearance and livability, as well as providing significant environmental benefits and APPEALS DECISION - 5 natural resource values as identified in the comprehensive plan. B. Under the authority of planning and zoning granted to the city under RC 76,0 9.2 the city of Bainbridge Island considers all forested areas within its jurisdiction as "lands with a likelihood of future conversion " from forest use as defined under WAC 222 -16 -060. C. Indiscriminate removal of vegetation may cause loss of wildlife and fish habitat, increased soil erosion, water and air quality degradation as well loss of aesthetic value. D. Vegetation management is necessary in order to implement the comprehensive plan, the landscape ordinance, the flexible lot design ordinance and to protect the health and safety of citizens. E. Vegetative management planning is necessary prior to removal of vegetation in order to reduce harmful effects and promote incorporation of existing vegetation into future land development plans. (Ord. 97-07§2, 1997) 16.22.020 Definitions. A. "Agricultural land" means farms and farmland as defined in BIMC 16.20.02!1. U. "Residual forest land " means any property or portion of any property which is not harvested as part of an approved conversion harvest plan or selective harvest plan. 16.22.060 Vegetation management standards. Any property which is converting or likely to convert to a nonforest use shall provide either a conversion harvest plan or a selective harvest plan as follows. A. Conversion Harvest Plan. The owner of any property which is being converted to a nonforest use shall provide a conversion harvest plan which meets the standards below: 1. Land clearing is permitted at the following percentages of the area existing in order to prepare for future nonagricultural development. Percentage of area that may be cut. Zoning District Percent of area R -. 04 20% R -1 40% R-2,2.9,3.5 and 4.3 60% 2. If the property is being converted to agriculture or pasture use, the property owner shall submit a farm plan approved by the Kitsap Conservation District, or the USDA Natural Resource Conservation Service (MRCS) or which is developed by the owner or a consultant using USDA standards for water quality protection. If the land has not been used for agriculture or pasture within the last five years, then a nonfarmed buffer of 25 feet shall be left between the edge of the property and adjoining nonagricultural parcels. As a condition of the vegetation management permit, the approved farm plan shall be implemented within one year after the completion of the conversion harvest. APPEALS DECISION - 6 3. Residual forest areas shall be in windfirm condition, clustered to the extent feasible and contiguous to other existing stands. Buffering of adjacent, developed properties shall be given high priority. 4. Unless otherwise allowed thorough an approved open space management plan, no cutting is allowed within any of the following areas: a. Critical areas or required buffers, as defined in Chapter 16.20 BIMC; b. Previously established noncut buffer areas; c. Greenways, scenic road corridors, view corridors or wildlife corridors designated by the comprehensive plan of Bainbridge Island or Bainbridge Municipal Code; and d. Any required perimeter landscape buffer that will be required upon development of the site in accordance with BIMC 18.15.0/0. S. Remaining forested areas which are not addressed in subsections A.1 through A.4 of this section, may be harvested under a harvest plan approved by the city that meets the standards for tree retention specified in subsection B of this section. 6. A Class IV general forest practice permit issued by DNR is required. 23. A code interpretation process is governed by the customary rules of statutory construction. The foundational objective is always to give effect to the legislative intent underlying the regulatory scheme. No exercise in the construction of regulatory terms is justified where the provisions are clear on their face. Among the primary principles of construction are rules that contiguous related provisions should be read as a whole to create a regulatory fabric that is both consistent overall and carries out the legislative purpose; that interpretations should be avoided that render some regulatory provisions meaningless or superfluous or produce absurd results; and that an applicable specific provision should carry more regulatory weight than a general one. 24. Ambiguity exists among the key terms of BIMC Chapter 16.22, and the instant appeal controversy is largely driven by these uncertainties. The term "nonfarmed buffer" at most tells us what it isn't, not what it is. The term "residual forest areas" and its variants could either refer to a specific entity or simply provide a catch -all category. And the ever adaptable word "implement" can encompass a variety of actions, in this instance the effective choice lying between "making a reasonable and credible start" and "completing the project." Key terms within BIMC Chapter 16.22 affecting the Rich application are thus ambiguous and merit construction and analysis. 25. This appeal proceeding has also raised questions about the proper scope of the Examiner's interpretive inquiry. The view adopted here is that determining legislative intent as to an overall policy scheme can be informed not only by the chapter under review but also by the City's comprehensive plan and other code titles and chapters when the topic under consideration is clearly addressed by them. And while an administrative tribunal has no jurisdiction to invalidate a code provision as either unconstitutional or contrary to statute, where ambiguity exists it is surely acceptable to consider the constitutional or statutory implications of competing interpretations and, other factors being equal, prefer an interpretation that avoids creating constitutional or statutory conflicts. APPEALS DECISION - 7 26. The role of BIMC 2.16.020 in the interpretation process has also been briefed. BIMC 2.16.020.P supplies a procedural structure for the administrative appeal process. Consistent with state law, it mandates that the procedural determinations of the SEPA responsible official are to be accorded "substantial weight" on review, a concept that buttresses the heavy burden of proof requirement placed on the appellant via the "clearly erroneous" review standard. Regarding administrative appeals generally, BIMC 2.16.020.P. Lk states as follows: Decision. 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. 27. The Examiner's view is that the provision for according substantial weight to the director's decision outside the SEPA framework operates to supply a broad directive targeting an overall regulatory outcome, not an instruction to regard every staff utterance or opinion as specially privileged. Staff s opinions of course can be accorded special weight when they are informed by relevant technical knowledge, like those of any other qualified expert. The substantial weight accorded here will be to the basic decisions to approve a vegetation management permit subject to conditions and to issue a MDNS. 28. Of the three permit conditions under review here, the dispute most easily resolved concerns number 12, wherein staff proposed requiring that the "applicant's farm plan... be implemented within one year after the completion of the conversion harvest," with a further proviso that an "extension of up to one additional year may be granted if necessary for full implementation." As the extension proviso makes clear, staff s intent was to require completion of all the farm plan elements within the one year framework, with a second year grace period available. 29. The relevant code provision to be applied is the last sentence of BIMC 16.22.060.A.2: "As a condition of the vegetation management permit, the approved farm plan shall be implemented within one year after the completion of the conversion harvest." The staff condition's proviso for allowing a second year is thus not code - based, suggesting in itself that completion within one year was likely not contemplated in the legislation. 30. At the public hearing on the appeal it soon became evident that a reading of the word "implemented" to mean "fully completed" would lead to an absurd result and could not have been intended. First, the farm plan is a dynamic document that will continue to evolve as long as the property is being actively farmed; it probably will never be completely implemented. Second, there is no compelling public policy that supports rapidly effecting all elements of the farm plan at the outset; gradual introduction of livestock to the farm over a number of years, for example, is more likely a good thing than a bad one from the perspective of avoiding adverse offsite impacts. 31. The legitimate public concern underlying BIMC 16.22.060.A.2 is to obtain an assurance that the contemplated removal of the property from timber production and its placement into agricultural use is not a subterfuge for avoiding the more restrictive standards that apply to non - agricultural conversions of timberlands. What is required is a credible commitment to future agricultural development sufficient to guarantee that a legitimate farm operation is being established. This can be accomplished through a condition requiring an orderly and substantial pursuit of farm infrastructure development during the APPEALS DECISION - 8 first year after clearing — targeting building permit submittals for barns, shops, greenhouses and the like. Condition no. 12 can be rewritten based on this more realistic interpretation of the word "implemented," which is also more clearly focused on the relevant underlying public policy. 32. The code's failure to define the artificial term "nonfarmed buffer" as used in BIMC 16.22.060.A.2 is perplexing in light of the fact that it appears to carry no standardized dictionary or land use practice meaning and as a negative concept offers little in the way of structural or semantic guidance. This conceptual vacuum led to a lively and far - ranging debate at the appeal hearing that understandably focused on broader questions of legislative intent and the common sense implications of various interpretive possibilities. 33. The basic framework of the staff s position was derived from a code interpretation it issued on July 7, 2016, in response to a similar proposal from a different property owner on a different parcel. The City has adopted a rather wide -open code interpretation procedure that arguably creates more problems than it solves. The Examiner's view is that code interpretations issued by the Planning Department in the abstract must be regarded as informational only, are entitled to no special deference on review, and neither create legal rights nor discourage reaching different conclusions when actually litigated within a specific factual setting. For a broader discussion of these matters, see the Dufresne code interpretation appeal decision issued March 16, 2016 (PLN50287 ADM). 34. The July 7, 2016, staff code interpretation focused on the question of whether BIMC Chapter 16.22 implicitly requires that forested vegetation, if existent within the perimeter nonfarmed buffer, must be retained. The property owner apparently wanted to log the buffer area and replace the trees with other plantings. While acknowledging that there was neither a code definition of nonfarmed buffer nor any "specific requirement that the trees and vegetation within this nonfarmed buffer be retained," the memo opined that the code "can be interpreted" to impose a tree retention requirement. 35. The reasons offered in support of the staff interpretation included a comment that retaining the existing vegetation in the buffer could "provide relief between the agricultural use planned ... and the residential uses that surround it." In addition, a portion of the purpose statement section for BIMC Chapter 16.22 was cited, and great emphasis was placed on the word "left" within a provision of BIMC 16.22.060.A.2 that reads, "If the land has not been used for agriculture or pasture within the last five years, then a nonfarmed buffer of 25 feet shall be left between the edge of the property and adjoining nonagricultural parcels." Finally, a paragraph was devoted to a discussion of the general zoning code definition of a buffer found at BIMC 18.36.030.38 but its implications were not fully explored, the final sentence merely concluding that the preferred staff interpretation was "not contradicted" by BIMC 18.36.030.38. 36. The July 7, 2016, staff interpretation is not persuasive. It reads more like an attempt to rationalize a politically attractive outcome than an effort to provide a fair and objective reading of the code — an impression confirmed by staff testimony at the appeal hearing. Despite other City code chapters expressing strong policy support for Island agricultural activity and a Comprehensive Plan that in places waxes enthusiastically over the virtues of sustainable organic farming of the type contemplated by the Riches, the current Island cause celebre seems to be tree preservation, not sustainable agriculture. And it is beyond dispute that you can't create a new farm on an undeveloped parcel without cutting down at least a few trees. The staff s present informal policy priorities thus appear to have resulted in the creation of unwarranted regulatory obstacles to the Riches' efforts to clear enough trees to establish an economically viable organic farm. 37. The most egregious obstacle created was the code interpretation's strained attempt to argue that APPEALS DECISION - 9 use of the word "left" in the sentence from BIMC 16.22.060.A.2 quoted above unequivocally mandates tree preservation in the nonfarmed buffer. Reading the sentence as a whole, the plain intent is simply to state that in some form a 25 foot wide protective buffer must remain; nothing in the context implies a firm requirement as to the buffer's specific content. And as we will see below, other more targeted and effective ways exist to achieve the desired protective function than imposing an inflexible requirement for tree retention. 38. The principal problem with staffs exclusive reliance upon BIMC 16.22.010 as a source of relevant legislative intent as to farming policy is that the chapter is basically about managing timberland conversions, not regulating agriculture. Conversion to agricultural use is simply one of a number of options available to a timber property owner and surely not the one most frequently sought. BIMC 16.22.010.E is mainly concerned with supporting the need for vegetation management planning. Promoting the "incorporation of existing vegetation into future land development plans" offers policy guidance primarily with regard to conventional development activities undertaken pursuant to BIMC 16.22.060.A.1, typically residential subdivisions. 39. The July 7, 2016, code interpretation seemed to be on the right track when it undertook to discuss the general definition of buffer provided at BIMC 18.36.030.38. But it veered away from drawing the logical conclusion suggested by the definition. As defined, buffers serve two purposes. One is to protect critical areas. The other is "to reduce the impact of undesirable sights, sounds, odors..." The Riches' nonfarmed buffer is not needed to protect critical areas. Ergo, its function must be to reduce the undesirable offsite impacts of farm operations. 40. This function is also implied by the BIMC 16.22.060.A.2 introductory clause, "If the land has not been used for agriculture or pasture within the lastfive years..." This clause focuses attention on the circumstance where an agricultural conversion may introduce farm impacts at a location where none existed historically, suggesting that mitigating offsite farm impacts is the primary purpose of the nonfarmed buffer requirement. But this key clause was omitted by staff from its July 7, 2016, code interpretation discussion. 41. Of course a nonfarmed buffer of retained trees is capable of performing an offsite impact reduction function. But other kinds of buffer restrictions that do not depend on regulating vegetation types can accomplish this task just as well without having to unduly burden the property owner's proposed farm use. For example, this protective function can be accomplished by a buffer that is required to exclude from its territory specified impactive farm activities. These exclusions might include the application of toxic chemicals, placement of livestock pens and the location of heavy farm machinery operations. On a small farm the visual impacts typically screened by trees are not as likely to be the issue for neighbors as odors, spraying and noise. 42. More to the point, an interpretation of the term "nonfarmed buffer" that discretely targets activities potentially offensive to adjacent uses seems more likely to pass legal muster if judicially challenged on constitutional grounds as an unlawful taking or deprivation of due process than a blanket provision relying on rigid categorical vegetation controls. A regulatory limitation imposed on real property uses needs to be rationally based on a credible connection to mitigating actual adverse risks, not simply on the ritual citation of generic "concerns" that may or may not in fact apply to the property under review. Categorically excluding plainly harmless and non - impactive uses from a buffer area merely because they might possess some agricultural utility seems especially indefensible. 43. Staff s attempt to force the Riches to maintain the "nonfarmed buffer" in its current timbered state is not merely unsupported by any language to be found in the code. It also would operate to APPEALS DECISION - 10 unnecessarily diminish and perhaps even defeat the Riches' agricultural purposes in pursuing the intended conversion. The portion of the Rich parcel proposed for pasture development consists of a long, thin stem of land. Requiring this stem to be bounded on both sides by a 25 foot wide buffer of tall trees would place the interior pasture area in nearly permanent shade without generating an offsetting public benefit that cannot be satisfactorily achieved by other less onerous means. 44. As stated within the testimony of both Brian Stahl, the Resource Planner for the Kitsap Conservation District who authored the Rich farm plan, and long -time area farmer Jerry Darnell, a regulation mandating placement of the pasture in a shaded area would severely compromise the property's suitability for farming. Since one of the purposes of BIMC Chapter 16.22 is to enable conversion of timberlands to agricultural use, an interpretation of BIMC 16.22.060.A.2 that unnecessarily undercuts this intended and permitted future agricultural use produces an absurd result and therefore should be rejected. 45. What this interpretive task essentially comes down to is the need to apply a rationally based qualifying factor to the seemingly unconstrained regulatory meaning of the term " nonfarmed." The goal is to produce an outcome tailored to the management of actual adverse impacts to offsite properties without either defeating a strongly articulated overall City policy intent to preserve the viability of agriculture on Bainbridge Island or violating relevant constitutional principles. The agricultural uses legitimately to be excluded from a nonfarmed buffer in a residential area should be those capable of imposing adverse impacts on neighboring properties. 46. To locate the matter within the specific context of the appeal hearing discussion, planting a buffer hedgerow cannot be deemed precluded simply because it might generate an agricultural benefit. No public purpose is served by requiring a nonfarmed buffer to be useless; the legitimate public goal is to prevent harmful impacts to adjacent properties. On the other hand, allowing the nonfarmed buffer to include grazing pasture up to the property boundary goes too far; that would provide a buffer in name only and offer no protective value. 47. Finally, the disposition reached above on the question of whether a nonfarmed buffer is required to retain existing trees obviates the need to provide another equally tortuous exposition on the companion question raised by the appellants in their challenge to project condition no. 13 — the putative mandate under BIMC 16.22.060.A.3 for maintaining trees within the nonfarmed buffer in "windfirm condition." The staffs windfirm condition requirement was piggy- backed onto the nonfarmed buffer timber preservation interpretation rejected above and thus was also felled with the same stroke. In other words, the staff condition itself was not legally windfirm: when the first regulatory tree fell it pulled down the second regulatory tree with it. CONCLUSIONS 1. The Hearing Examiner has jurisdiction over this admninistrative appeal proceeding. City codes authorize combining a SEPA appeal with the underlying permit appeal. 2. The matters to be decided within this appeal mostly involve mixed issues of law and fact. To the extent that legal conclusions may have been stated within the findings above, they are also adopted herein by reference as conclusions of law. 3. The standards applicable to deciding an administrative appeal of a SEPA threshold determination are primarily supplied by state law. WAC 197 -11- 660(1), which the City has adopted by reference at BIMC 16.04.155, reads as follows: APPEALS DECISION - 11 (1) Any governmental action on public or private proposals that are not exempt may be conditioned or denied under SEPA to mitigate the environmental impact subject to the following limitations: (a) Mitigation measures or denials shall be based on policies, plans, rules, or regulations formally designated by the agency (or appropriate legislative body, in the case of local government) as a basis for the exercise of substantive authority and in effect when the DNS or DEIS is issued. (b) Mitigation measures shall be related to specific, adverse environmental impacts clearly identified in an environmental document on the proposal and shall be stated in writing by the decision maker. The decision maker shall cite the agency SEPA policy that is the basis of any condition or denial under this chapter (for proposals of applicants). After its decision, each agency shall make available to the public a document that states the decision. The document shall state the mitigation measures, if any, that will be implemented as part of the decision, including any monitoring of environmental impacts. Such a document may be the license itself, or may be combined with other agency documents, or may reference relevant portions of environmental documents. (c) Mitigation measures shall be reasonable and capable of being accomplished. (d) Responsibility for implementing mitigation measures may be imposed upon an applicant only to the extent attributable to the identified adverse impacts of its proposal. Voluntary additional mitigation may occur. (e) Before requiring mitigation measures, agencies shall consider whether local, state, or federal requirements and enforcement would mitigate an identified significant impact. 4. In addition, BIMC 2.16.020.P.1.i provides following guidance: i. In a SEPA procedural appeal, the procedural determination by the city's SEPA official shall carry substantial weight. ii. In an appeal 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 BIMC criteria for that type of approval, or (C) the evidence in the record was not adequate to support the decision. iii. In an appeal on the substance of a SEPA determination, or substantive conditions attached to an approval through the SEPA review process, the determination by the city 's SEPA official shall carry substantial weight Subsections i and iii of these provisions are specific to SEPA appeals, while subsection ii appears to be applicable to appeals generally, as are the provisions of BIMC 2.16.020.P. Lk quoted in the findings above. 5. The City's adopted substantive authority supporting imposition of MDNS conditions to mitigate APPEALS DECISION - 12 stormwater impacts is specified within BIMC 16.04.160.13 and includes the municipal code, the comprehensive plan, and state water quality and forest practice acts. The municipal code at BIMC 15.20.050.A adopts by reference Department of Ecology's 2005 Stormwater Management Manual for Western Washington. There exists ample formally adopted substantive authority to legally justify the City's decision to mitigate the stormwater impacts of the Rich proposal via conditions imposed under SEPA. 6. A question of jurisdictional scope concerns how far the City can or should proceed via its SEPA authority in structuring a stormwater review and permitting process that will be mostly conducted by the state Department of Ecology. The Rich proposal will involve logging more than five acres of timber, and it is undisputed that this level of clearing triggers a requirement to submit a general NPDES construction permit application to DOE. 7. MDNS condition no. 1 as imposed by the City's SEPA responsible official reads as follows: 1. A general NPDES construction permit from the Washington State Department of Ecology (DOE) must be obtained by the applicant prior to any clearing, vegetation removal, or vegetation disturbance on the property. A copy of this approval shall be provided shall be provided to the Department of Planning and Community Development (PCD) prior to commencing any clearing activity. 8. Logging is an intense short-term land use activity that involves a temporary but rather complete disruption of the affected development area. If a major storm event occurs before the logged area can be stabilized, there exists the risk of sediment -laden runoff being released from the site. The risk of such releases occurring, while perhaps not extremely likely, constitutes an adverse environmental impact subject to regulation under SEPA because of the potential severity of the harm that can result. 9. The standard NPDES permit requirement triggered by a storm event occurrence during the site clearing phase mandates that the site be visited within 24 hours after the storm by a certified inspector to determine if an impactive runoff release has occurred. These kinds of inspections have been routinely performed for years; there is no credible argument to be made that a standard NPDES inspection requirement is not reasonable and capable of being accomplished. 10. If there is a plausible basis for objecting to the wording of condition no. 1 on the grounds of regulatory overreach, it would be because it requires the NPDES to be obtained, not merely applied for. Even though she has already secured the required permit, Ms Rich continues to challenge the determination that runoff from her property would enter waters of the state and therefore subject her proposal to regulation under an NPDES permit. She related finding herself frustrated in her further attempts to pursue this contention because DOE apparently has taken the position that the wording of the City condition operates to preclude DOE from entertaining her challenge to the permit's necessity. 11. Condition no. 1 can be reworded to clarify that determining the actual necessity for the NPDES is DOE's exclusive call. As provided at BIMC 15.20.030.13, the City's role is limited to referring an applicant meeting the NPDES regulatory threshold to DOE for compliance with its permitting procedures. These procedures may include an independent reconsideration by DOE of any previous finding by the City that site discharges will enter waters of the state and that an NPDES permit is required. APPEALS DECISION - 13 12. Subject to the clarifying revision described above, condition no. 1 was a proper exercise of the City's SEPA substantive authority based on an identified specific adverse environmental impact, was performed in compliance with WAC 197 -11- 660(1) and the City's procedures for implementing SEPA, and was not clearly erroneous based on the record as a whole. 13. BIMC 2.16.020.P. Li directs the Examiner's review of City staff decision on appeal to a determination of whether "the decision is inconsistent with the BIMC criteria for that type of approval, or ... the evidence in the record was not adequate to support the decision. " In evaluating project conditions the Examiner is instructed by BIMC 2.16.020.P. Lk to " ensure conformance with BIMC, the city's comprehensive plan and other applicable laws or regulations." 14. There is no disagreement among the parties that the Rich proposal to convert timberland to an agricultural use both requires a vegetation management permit issued under BIMC Chapter 16.22 and that the proposal is capable of complying with relevant regulatory standards. The only real questions at issue are about what exactly the standards entail. Because key terms specifying the standards are ambiguous, an exercise in code construction was required. 15. There are essentially three sets of legislatively recognized interests to be weighed and balanced: the public interest in an orderly, legitimate and environmentally sound timberland conversion process; the interests of neighboring residential properties in being insulated from adverse impacts created by the new use; and the interests of the appellants in securing a regulatory process that allows them a fair and reasonable opportunity to succeed at establishing a viable organic farm. 16. The fundamental defect of the staffs regulatory approach was that is that it indulged in interpretations of the code that undervalued the Riches' interests as property owners seeking to establish a legislatively favored farm use. The result was a scheme of regulatory interpretation that imposed excessive development limitations unrelated in some instances both to stated code standards and actual protective requirements, or else placed unduly burdensome limitations on the appellants under circumstances where less oppressive options were readily available. 17. The linchpin of the regulatory analysis is the ambiguous term, "nonfarmed buffer," which both has no set definition and can be read as imposing an absolute prohibition on anything even remotely related to agriculture. For example, under this approach a buffer planted with blueberries would be prohibited but a buffer of snowberries might be allowed because humans don't eat them. Staff s inflexible interpretation produced absurd results and must be rejected. It was absurd because the clear legislative purpose of the nonfarmed buffer is to protect neighboring properties from unsavory farm impacts, an objective that bears no logical relationship to the edibility of the vegetation planted there nor to the mere fact that the buffer might somehow support a farming function. When the buffer's protective function is properly analyzed in terms the types of offsite harms it is designed to avoid, more flexibility is obtained and the Riches' legitimate farm goals can be furthered. 18. The staff attempt to force the Riches' proposed nonfarmed buffer to become a timber retention zone appears to be case of an otherwise laudable tree preservation goal seeking an inappropriate outlet. BIMC Chapter 16.22 exists to regulate conversion of timberlands to other uses consistent with the framework of the state Forest Practices Act. Trying to transform it into a tree preservation ordinance by means of various back door interpretations was an ill- conceived exercise that finds no credible support in the chapter language and subverts its essential policy and purpose. APPEALS DECISION - 14 19. The appellants have met their burden of proof to demonstrate that the project conditions challenged do not accurately reflect applicable BIMC criteria for approval of a vegetation management permit. These challenged conditions have been revised to ensure conformance with BIMC Chapter 16.22 criteria as properly constructed. DECISION The SEPA threshold determination appeal of Crystal and Yurie Rich identified as file no. PLN50468 is DENIED with repect to MDNS condition no. 1; but MDNS condition no. 1 has been revised to more accurately reflect current circumstances. The Riches' conjoined vegetation management permit appeal is GRANTED as to project conditions nos. 7, 12 and 13. All other MDNS and project conditions stated in the City's combined administrative vegetation management permit decision and SEPA Mitigated Determination of Nonsignificance (MDNS) issued December 22, 2016, are affirmed. The MDNS and project conditions revised pursuant to this decision are as follows: SEPA Conditions: 1. A general NPDES construction permit from the Washington State Department of Ecology (DOE) has been obtained by the applicant. Prior to commencing any clearing, vegetation removal or vegetation disturbance on the property, a valid current copy of this permit approval shall be provided to the Department of Planning and Community Development (PCD). If DOE at some point determines that an NPDES permit is not in fact required, a written copy of such determination shall be provided to PCD before commencing the clearing activity described herein, in which instance PCD may also augment the project's drainage conditions to the extent necessary to assure compliance with BIMC Chapter 15.20 requirements. Project Conditions: 7. A 25 -foot vegetated nonfarmed buffer must be provided along the exterior parcel perimeters adjacent to the cleared portions of the property to protect nearby residential uses from adverse farm impacts. Within this buffer existing vegetation may be removed and replaced with hedgerows or plantings other than pasture grass. No agricultural activities or uses shall be permitted in the nonfarmed buffer that have the potential for creating adverse offsite impacts, such as may result from livestock or poultry pens, manure storage or applying toxic chemicals. 12. The applicant's farm plan, submitted with this application, shall be implemented within one year after the completion of the conversion harvest. "Implementation" as used herein requires making satisfactory progress toward developing the basic farm plan infrastructure and includes submission of complete building permit applications for the proposed barn, shed and at least two greenhouses, plus making preliminary preparations for planting the pasture and orchard and submitting plans describing the proposed configuration and use of the nonfarmed buffers. At the end of the one -year initial period the applicant shall file a written report to PCD describing the progress made to date toward implementation of the farm plan, which shall be APPEALS DECISION - 15 inspected and verified by PCD. An extension of one additional year may be granted if necessary for adequate initial implementation as described herein. Should the owner /applicant fail to implement the farm plan as required, this permit approval may be revoked pursuant to BIMC 16.22.097, in which case revegetation and fines as described in that section shall apply. 13. All residual forest areas, including any part of the 25 -foot nonfarmed buffer that the applicant proposes to preserve in its present forested state, shall be retained in windfirm condition pursuant to BIMC 16.22.060.A.3. Prior to commencing any clearing activity, the applicant shall provide verification to PCD from a consulting arborist certified by the International Society of Arboriculture (ISA) that the retained residual forest areas on the site will remain in windfirm condition after the clearing activities proposed have been completed. ORDERED March 9, 2017. /s/ Stafford L. Smith Stafford L. Smith, Hearing Examiner City of Bainbridge Island The Hearing Examiner is authorized to make the City of Bainbridge Island's final decision on land use administrative and SEPA appeals. A party with standing may seek judicial review of this decision by filing a timely suit in Kitsap County Superior Court under the Land Use Petition Act. The exhibit list prepared by the Clerk of the Hearing Examiner's Office is attached. APPEALS DECISION - 16 EXHIBIT LIST Appeal of Administrative Code Interpretation Rich PLN50468VEG Staff Contact: Public Hearing: 02/22/2017 at 9:00 AM Christy Carr, AICP, Senior Planner Location: City of Bainbridge Island City Hall Council Chambers Hearing Examiner: Stafford Smith EXHIBIT DOCUMENT DESCRIPTION DATED NO. 1 Vegetation Permit Application 06/21/2016 (Received) 2 Surface & Stormwater Management (SSWM) Plan Worksheet 06/21/2016 Forest Practices Application /Notification (Received) 3 06/21/2016 Notice of Application /SEPA Comment Period (Received) 4 07/01/2016 (Dated) 5 Notice of Incomplete Application 07/05/2016 _ Dated 6 Staff Report — with Attachments: A. Vegetation Management Application B. SEPA checklist C. Public comment D. Additional information E. Development Engineer review comments and request for information F. Drainage Plan G. Farm Plan H. Code Interpretation of the Director of Planning and Community Development 7 Notice of Administrative Decision and Mitigated Determination of 12/22/2016 _Nonsignificance (MDNS) Appeal of Administrative Decision (Dated) 8 01/05/2017 (Received) 9 Notice of Appearance (Attorney James Haney) 01/18/2017 (Received) 01/24/2017 10 Motion for Expedited Hearing Date (Received) 11 Declaration of Crystal Rich in Support of Motion for Expedited Hearing Date 01/24/2017 Response to Motion for Expedited Hearing Date (Received) 12 01/31/2017 Order on Briefing and Denying Motion (Dated) 13 02/03/2017 (Dated) 1 EXHIBIT LIST Appeal of Administrative Code Interpretation Rich PLN50468VEG Staff Contact: Public Hearing: 02/22/2017 at 9:00 AM Christy Carr, AICP, Senior Planner Location: City of Bainbridge Island City Hall Council Chambers Hearing Examiner: Stafford Smith 14 Notice of Public Hearing and Certificate of Distribution 02/03/2017 Resume of Brian Stahl (Dated) 15 02/22/2017 Hedgerow Planting (Natural Resources Conservation Service — (Admitted) 02/22/2017 16 Conservation Practice Standard) Selected Excerpts of 2004 Bainbridge Island Comprehensive Plan (Admitted) 17 02/22/2017 Photos A -W of Subject Location Taken by Appellant Crystal Rich (Admitted) 18 02/22/2017 Miscellaneous Email Correspondence Among City Staff and Appellants (Admitted) 19 02/22/2017 (July 2016 — December 2016) Emails Between Appellant Crystal Rich and Depart of Ecology (Admitted) 02/22/2017 20 (November 2016) Excerpt from City of Bainbridge Island Administrative Manual (Admitted) 21 02/22/2017 (pages 25 and 26) (Admitted) 02/22/2017 22 Excerpt from Stormwater Construction Manual (February 2005) (Admitted)