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2017-01-05 APPEAL OF ADMINISTRATIVE DECISION1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 BEFORE THE CITY OF BAINBRIDGE ISLAND OFFICE OF HEARING EXAMINER CRYSTAL and YURIE RICH, Appellants, V. CITY OF BAINBRIDGE ISLAND, acting through its Department of Planning and Community Development, No. PLN50468 VEG APPEAL OF ADMINISTRATIVE DECISION Crystal and Yurie Rich, Appellants herein, pursuant to City of Bainbridge Island Municipal Code ( "BIMC ") § 1.26.070(D) and § 2.16.020(P)(1)(a), hereby appeal to the Bainbridge Island Office of Hearing Examiner that certain administrative decision dated December 22, 2016 (the "Decision"), issued by the Director of the City of Bainbridge Island Department of Planning and Community Development ( "the City "), Mr. Gary R. Christensen. The Decision is regarding Vegetation Management Permit PLN50468 VEG, The decision imposes certain project conditions which, as set out below, Mr. and Mrs. Rich challenge and appeal. I. NAME AND IDENTITY OF APPELLANTS AND BASIS FOR STANDING 1.0 Crystal and Yuric Rich. Their current address is: P.O. Box 11604, Bainbridge Island, Washington, 98110, telephone: (360) 981 -7484. Mr. and Mrs. Rich own the property APPEAL OF ADMINISTRATIVE DECISION - 1 of 23 LAW ite380 [90373-1] 200 Winslow Way West, Suite 360 200 Winslow sl w Way W Bainbridge Island, WA 98110 (206)780.6777 ORIGINAL (206) 780.6865 (Facsimile) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 subject to the City's Administrative Decision. 1.1 Appellants' legal representative in this matter is the Dennis D. Reynolds Law Office, 200 Winslow Way West, Suite 380, Bainbridge Island, Washington 98110; telephone: (206) 780 -6777; fax: (206) 780 -6865. 1.2 Appellants are aggrieved parties with standing to seek review and contest the Decision because their property development and use is subject to onerous and illegal project conditions as further set out below. 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 will likely cause them, for which review and relief is requested. II. NAME AND IDENTITY OF RESPONDENT 2.0 The City of Bainbridge Island, Department of Planning, and Community Develonment, 280 Madison Avenue North, Bainbridge Island, Washington, 98110, telephone: (206) 842 -2545, acting through Director Gary Christensen. III. DECISION APPEALED 3.0 Appellants appeal the Administrative Decision dated December 22, 2016 and the related SEPA Mitigated Determination of Non - Significance( "MDNS "). A true and accurate copy of the Decision and MDNS is annexed hereto as Exhibit 1, by reference made part of this Appeal. The Decision imposes the following project conditions which are specifically challenged and appealed: 1. 1 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 [sic] to the Department of Planning and Community Development (PCD) prior to APPEAL OF ADMINISTRATIVE DECISION - 2 of 23 2 0 Winslow n. w Way nS L W OR 380 200 Winslow Wny West, Suite 380 [90373 -11 Bainbridge Island, WA 98110 (206)780.6777 (206) 780 -6865 (Facsimile) 10 11 12 13 f[1 15 16 17 18 19 20 21 22 23 24 25 commencing any clearing activity. 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 designed 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 windfrrm 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 windfinn condition. The buffer shall not be reduced below the 25 -foot requirement as a result of the arborist's recommendation. Decision, December 22, 2016. 3.1 A true and accurate copy of the Staff Report dated December 20, 2016 accompanying the Decision (without Exhibits) is annexed hereto as Exhibit 2, by reference made part of this Appeal. 3.2 Appellants appeal any other part of the Decision which supports the challenged Project Conditions. 26 APPEAL OF ADMINISTRATIVE DECISION - 3 of 23 [90373 -11 DENNIs D. REYNows LAW OFFICE 200 Winslow Way West, Suite 380 Bainbridge Island, WA 98110 (206) 780 -6777 (206) 780 -6865 (Facsimile) 1 2 3 4 5 ;y 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KI 3.3 Appellants appeal any portion of the MDNS which supports the challenged Project Conditions or the City's use of SEPA substantive authority to justify imposition of the challenged conditions including but not limited to Project Condition No. 3. 3.4 The Decision is in error for the reasons set out below. IV. STATEMENT OF RELEVANT FACTS IN SUPPORT OF GROUNDS FOR APPEAL 4.0 Mr, and Mrs. Rich own 6.96 acres of property located on Bainbridge Island. They intend to develop their property for future residential and agricultural use. The work includes removing trees and stumps to enable use of the property for the stated purposes. 4.1 The project site and tax parcel information is: NW '/4, SW ' /n, Section 22 T.25N., R2E., WM Lot 3 -013, current use 910 - Undeveloped Land Tax ID No. 222502- 3 -013- 2008. The assigned zoning is R -0.4. The Comprehensive Plan designation is R -0.4 4.2 The site contains no critical areas. The land is in close proximity to neighboring farms. 4.3 The subject parcel is long and narrow. Starting in the Northwest corner, the property is 165.65 feet South, 1320.57 feet East, 330.71 feet North, 528.44 East, 165 feet South, 777 feet West to the point of beginning. The high point of the property is approximately 240 feet above sea level and the low is approximately 170 above sea level with a fairly consistent slope to the west. Contours run north south. The site is accessible by Sands Avenue NE and Quail Hill Road. 4.4 The Riches purchased their land in February 2016 after an exhaustive 18 month feasibility study to demonstrate its viability for farming and private residential use on Bainbridge Island. APPEAL OF ADMINISTRATIVE DECISION - 4 of 23 200 Wi REYNOLDS LAW OFFICE 200 Wnssll ow Way West, Suite 380 [90373 -I] Bainbridge Island, WA 98110 (206) 780 -6777 (206) 780 -6865 (Facsimile) 10 11 12 13 14 15 16 17 16 19 20 21 22 23 24 iW 91 4.5 The Appellants are not commercial developers. They are developing the site for their own use. The Riches sought technical assistance from the City — which pursuant to State law (RC W 36.70B.220) the City was required to provide — and in good faith followed all directives from City employees as they understood them in the permitting process. 4.6 The project as proposed involves clearing the property for a home, shop, barn, road, septic field, well, pasture, orchard, green houses, and agricultural areas. The City wrongfully insists a 25 -foot natural open space buffer Native Vegetative Buffer will remain along the entire perimeter of the property. After trees are removed, debris and vegetation will be ground on site and used as stormwater mitigation and for agricultural soil amendments. 4.7 The existing use will be conversion of forested lands to agricultural and private residential use. The Appellants intend to develop their property as an organic farm using a variety of permaculture practices. Existing resources will be used to enhance and enrich the land to benefit native wildlife as well as create productive farmland. Thoughtfully designed, this farm will benefit the community with locally grown food, serve as an area designated for education in the "Farms to Schools program," and improve the quality of life on Bainbridge Island by implementing goals embodied in BIMC Chapter 16.26 — Right to Farm. 4.8 The evidence at Hearing will show the farm is something Appellants have worked toward for 20 years. The land is perfectly situated on the Island to support their desire to not only develop a productive farm with quality soils in a neighborhood surrounded by other established farms, but is within walking distance to four public schools and several private schools. The location allows easy access for the Farms -to- Schools Program, support of programs such as 4H and FFA, and internship /job opportunities for teens. The Riches have also set aside an area to grow food for the food bank. The farm is located in the heart of the APPEAL OF ADMINISTRATIVE DECISION - 5 of 23 200 Wi REYNOLDS LAW OFFICE 200 Wnssll ow Way West, Suite 380 (90373 -1] Bainbridge Island, WA 98110 (206) 780 -6777 (206) 780-6865 (Facsimile) 10 11 12 13 14 15 W 17 18 19 20 21 22 23 24 25 26 community. It is intended to be a living, breathing place to bring people together. It will be a convenient Crop Share Association ( "CSA ") location, where people buy a "share" of whatever is produced for a season/year, and an easy pick -up location for when the farm is established. The location is also well situated for when the Riches take products to market. 4.9 The farm will maintain the existing rural character and community. The farm will support one residence for Appellants' family — it is not a development or large scale operation. The proposal is supported by the farming community, the Riches' new neighbors, and in general, every community member they have talked with. Appellants assert that the project is exactly what the Comprehensive Plan states as one of the main goals and values for Bainbridge Island — farming at the heart: Biosecurity. Rural development; Thoughtful land use management; Efficient and long -term planning of resources; Increased farmland with the ability to teach future generations; and Consideration of natural resources and wildlife. 4.10 Appellants started the permit process on June 21, 2016. The pre - application conference was held February 16, 2016. Appellants discussed several options with Christy Carr (Senior Planner) as to how to go about building the farm, what permits may be needed and what City Policy was in regards to developing land for private residential use. Appellants discussed moving forward with just a Vegetation Management Permit versus a full building permit application and were advised that the vegetation management process was much faster — four to eight weeks — than a full site review with the home development. At that time, they were not given a specific direction as to the best process and felt fairly confused about how to go about developing the farm. Appellants' discussed subdividing the agricultural and residential lots and how that would impact the development of the farm. They were given two options for clearing for the residential subdivision — to leave a cluster of trees approximately APPEAL OF ADMINISTRATIVE DECISION - 6 of 23 200 Winslow sl w Way OSLAW OFFICE 200 Winslow Way West, Suite 380 [90373 -11 Bainbridge Island, WA 98110 (206) 780 -6777 (206) 780 -6865 (Facsimile) ,Ti] 11 12 13 14 15 16 17 18 iL91 20 Pal 22 23 24 25 26 2%s acres or to leave a buffer surrounding the property. When they brought the agricultural considerations forward, the non - farming buffer was discussed as an option to extend the use of the land and the need to have a farm plan developed by the Kitsap Conservation District. The Riches left the pre - application conference with little direction and a great deal of confusion about the correct path to reach their goals in regards to City policy. 4.11 Thereafter, the Riches decided to not subdivide at this time and instead pursue developing the lot as one parcel for simplicity and better land use management and flexibility. 4.12 During this time period Appellants met with Brian Stahl of the Kitsap County Conservation District. Mr. Stahl explained the general premise behind agricultural land use and best practices outlined in the City Code. With this technical aid, the Riches designed a farm plan with elements of the topography, organic farming methods, animal densities for the desired use, long term development of the land in a sustainable manner, wise water use, community needs and the ability to develop a working farm. 4.13 Thereafter, based upon Mr. Stahl's recommendations on animal density and management, pasture rotation and stormwater considerations, the Riches reached out to the farming community at large to help develop a more comprehensive plan. They then researched the COBI Code for agricultural policies, Comprehensive Plan goals and City of Bainbridge Island Values. City Staff were fairly difficult to reach and generally did not return phone calls or emails to help with this process. 4.14 Appellants submitted the Clearing and Vegetation Management Permits on June 21, 2016. Their initial request for submitting the permits was rescheduled by the City twice, When the Riches were finally assigned a day, the person who was scheduled for the intake was away at a training session. Appellants were assured that all the documents needed APPEAL OF ADMINISTRATIVE DECISION - 7 of 23 200 Wi REYNOLDS LAW OFFICE 200 Wnssll ow Way West, Suite 380 [90373 -1] Bainbridge Island, WA 98110 (206)780.6777 (206) 780-6865 (Facsimile) 10 11 12 13 14 15 I[: 17 18 19 20 21 22 23 24 25 26 to proceed were present, formatted correctly, etc. They received notice that the City was ready for them to pick up the signs for the public posting notification for SEPA review. The Notice was posted at their property for public comment within a day of notification on July 1, 2016. During this period, Ms. Rich checked in with the City several times to make sure everything was complete. It was difficult to reach Staff, however, in general she was told "everything needed" was in hand. 4.15 On July 9, 2016, Appellants received a letter of "incomplete application." The letter listed all the requirements for the application as missing and or incomplete. According to the City, each bulleted item (including Appellants' name, address and phone number) needed to be addressed. Ms. Rich went in to speak with Christy Carr to ask what was missing due to the confusing nature of the letter. Ms. Carr had not reviewed the site plan or maps at that time and said she would need more time to review the packet to make sure all information was included. Ms. Carr assured her the visit was sufficient. The Riches then responded with a letter "of record" outlining where each item of information could be found in the application to confirm the presence of the required information. 4.16 Appellants did not hear from the City again until Ms. Rich checked in after their time allotment for review (30 days) had expired. Ms. Carr was on vacation and Josh Machen took the call. He stated everything was complete but that there would be some issues with Appellants' permit, He stated at that time "You can't farm on Bainbridge," and "little back yard gardens or people who like to have chickens for their own eggs are okay, but people can't make a living farming on Bainbridge." Ms, Rich replied that the farm proposal was something Appellants had been working towards for a long time, that they were following the Zoning Code for their property (which has agriculture as a preferred use), and APPEAL OF ADMINISTRATIVE DECISION - 8 of 23 200 Wi sl wWay DSLAWOFFICE 200 Winslow Way West, Suite 380 [90373 -11 Bainbridge Island, WA 98110 (206) 780 -6777 (206) 780 -6865 (Facsimile) 10 11 iK 13 14 15 16 17 18 19 20 21 22 23 PZ! 25 26 that they had spent a tremendous amount of time discussing the feasibility and planning the site to utilize the best features of the topography and available resources. Mr. Machen expressed concern at Appellants' desire to clear the land and referenced the "Tree LID Ad Hoc Committee." He said its efforts were to preserve all existing stands of trees on the Island. He further stated that Appellants had a large parcel and would not be allowed to clear it as they had planned in their farm plan. Ms. Rich mentioned the Code and the existence of the nonfarm buffer to protect their neighbors' privacy. Mr. Machen told Ms. Rich at that time that the nonfarm buffer code needed to be changed and the Tree LID committee was working on re- writing `bur land use code." Ms. Rich replied that as written, the nonfarm buffer allowed for good land management and protection of nonagricultural parcels but it did not require the maintenance of trees, which would create dangerous strips of trees subject to windfall and create areas of shade which would make farming difficult. The liability of the trees would put people's safety at risk, as well as pose potential danger to farm structures, livestock and crops. Mr. Machen stated at that time that the buffers would then need to be expanded to a windfirm condition, which would mean Appellants could not clear their land for pasture due to the dimensions and shape of their property. Ms. Rich again reminded the City Planner that is not what the Code stated, referenced the right to farm, the COBI Comprehensive Plan and the statement of goals and values contained in these documents. Mr. Machen then told her of another family who was using the farm plan to clear an area so they could have chickens. He said he did not feel they were legitimate farmers but using the Code to their advantage to clear additional trees. He attached a letter sent to them to Appellants' file. Ms. Rich wrote an email to Ms. Carr to share the information Mr. Machen referenced and asked how to move forward, APPEAL OF ADMINISTRATIVE DECISION - 9 of 23 200 Wi REYNOLDS LAW OFFICE 200 Wnssll ow Way West, Suite 380 [90373 -11 Bainbridge Island, WA 98110 (206) 780 -6777 (206) 780 -6865 (Facsimile) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Kee 4.17 Once Ms. Carr returned from vacation, she also made Appellants aware of the requirements of Janelle Hitch, the City's Development Engineer, to have a "fully engineered" stormwater plan as Ms. Hitch did not feel the erosion control plan would be sufficient. Ms. Hitch also expressed concern with Quail Hill Road (which is half public and half private) being used as the haul route for removing trees, and that Appellants would need to have an arborist certify that the trees left remaining were in "windfirm condition." The Riches responded to the concern by using the COBI Stormwater Mitigation worksheet, which states development that creates less than 5000 square feet of impervious surface (the project meets this requirement) may utilize the prescriptive worksheet or the Rain Garden Handbook for Western Washington with a raingarden sized to 20% of the contributing drainage area, Ms. Can stated that Appellants would be required to have a formal "stormwater plan" per the City Engineer's comments for approval and would not be allowed to use the prescribed methods allowed under COBI Code because they were converting more than 2.5 acres to agricultural use. She also referenced a recent Staff Report Mr. Machen directed her to use which incorrectly redefines a nonfarmed buffer to be treated the same as a native vegetation buffer. 4.18 Appellants proceeded to hire a Geotech and Stormwater Engineer to evaluate the stormwater issues. The report shows that the subject property does not contain any wetlands or critical areas, and has all the best features of well - draining soil and good topography. A well designed raingarden can be placed in the lowest area of the property to recharge the aquifer — ironically, SMALLER than what the prescriptive worksheets would have indicated. 4.19 The permit requirements for the Washington State Department of Ecology, APPEAL OF ADMINISTRATIVE DECISION - 10 of 23 200 Winslow sl wWay SLnwoe380 200 Winslow Way West, Suite 380 [90373 -I) Bainbridge Island, WA 98110 (206) 780 -6777 (206) 780 -6865 (Facsimile) 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Pal 26 which Appellants were forced to follow by the requirement to apply for a General Construction Stormwater Permit should not have been imposed. While acquiring the permit is not expensive, implementation of the permit requirements will likely be very expensive due to factors beyond the Riches' control such as rainfall, time of year, etc. The development will not discharge stormwater to "waters of the state" by the nature of the site topography and resulting downstream conditions. However, Janelle Hitch disagreed and as the municipal authority, DOE could not overrule her requirement. The requirements are expensive depending on the weather. Each time it rains, any resulting runoff must be monitored and sampled for turbidity, pollution, etc. Appellants' must employ someone full time, 24/7 during the course of construction. The reporting must be made to the state and any events with negative results must be corrected on a time schedule. The general feeling in the DOE is that this is for large scale developments or commercial projects where there may be toxins or other pollutants entering ponds, streams, lakes or the sound. In general, the evidence at hearing will show Ecology does not typically require agricultural land to be monitored because the nature of the "disturbance" is generally mild with minimal impacts. 4.20 Appellants had the trees evaluated by Katy Bigelow, a Certified Arborist. In a preliminary report, the arborist states that there is some laminated root rot in several areas as well as freeze rot. If these areas are required to be retained in a native vegetative buffer instead of good land management of the nonfarmed buffer, these trees will not survive even if left in windfirm condition, There is also large areas of English Ivy, Holly, Scotchbroom and other invasive species present. 4.21 Despite the technical reports, City Staff continued on the path of holding Appellants to a different standard than what is written in the Code. Appellants' Stormwater APPEAL OF ADMINISTRATIVE DECISION - 11 of 23 200 Winslow sl REYNOLDS LAW Suite 380 200 Winslow Way West, Suite 380 [90373.1] Bainbridge Island, WA 98110 (206) 780 -6777 (206) 780 -6865 (Facsimile) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Report was finalized and submitted. At this point, Janelle Hitch stated that Appellants would need to get a Department of Ecology Construction Stormwater Permit, that their project did not meet the requirements outlined in the state permit. After confirmation with five officials from the DOE, the determination was that although Appellants do not meet the requirements to have to apply for a Construction Stormwater Permit, because Ms. Hitch made it a condition of the permit, DOE did not have the authority to overrule her. Appellants applied for the NPDES permit, posted it in the paper and sent confirmation to Ms. Hitch. Two and a half weeks after obtaining the DOE General Construction Stormwater Permit, a number of unreturned phone calls and emails, Ms. Rich visited City Hall to confirm with Ms. Hitch that her conditions had been met. 4.22 During this period, Ms. Carr told Appellants that she would move forward with her Staff Report using the nonfarmed buffer as it is written, not the interpretation of the native vegetation buffer, the stormwater permit and other conditions set by Ms. Hitch, and the farm plan written by the Kitsap Conservation district at the end of November. Ms. Rich checked back in with Mr. Carr in early December and was informed that the report was on the Planning Manager's desk for review. 4.23 Appellants received confirmation of the permit approval via email on December 28, 2016, with conditions. The conditions set by the Staff interpretation do not follow COBI Municipal Code and hold the Riches to a higher standard. These conditions will make farming quite difficult, as well as create a huge financial burden on the Riches to implement the full farm within "a year," with oversight and monitoring from Staff. 4.24 The neighbors generally do not oppose the project. They submitted a letter expressing reasonable concern about the road being used, the current failing stormwater APPEAL OF ADMINISTRATIVE DECISION - 12 of 23 200 Wi REYNOLDS LAW OFFICE 200 Wnssll ow Way West, Suite 380 [90373 -1] Bainbridge Island, WA 98110 (206)780.6777 (206) 780 -6865 (Facsimile) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ditching and crushed culvert pipe, and the creation of dust. Their letter was submitted into public record. General sentiments about Appellants' farm have been supportive. 4.25 Project Condition No. 7 is impractical. The size and shape of the property will be directly impacted by the retention of trees in the nonfarmed buffer. Almost the entire farm will be in shade, which will impact Appellants' ability to grow crops, maintain healthy pasture and keep soils moist. A nonfarmed buffer as defined under the Code is an area to protect nonagricultural parcels from agriculture and allows for good land management. In BIMC § 18.09.030, the Code allows for the use of Hedgerows, the extension of grazing to the property lines (except in wetland areas), as well as the ability to screen farm structures in high use areas. Additionally, in the Farm Management Plan, as referenced in the COBI Administrative Manual for obtaining permits, pages 27 -28, f. Visual Impacts and Screening are specifically designated as uses of the nonfarmed buffer. Non - farmed buffers with active management are areas that allow good land management for the protection and privacy of farms from nonagricultural parcels. Farmers traditionally use screening methods, some of which can include "native species." Favored species include Sugar Maples for shade, Mountain Ash/Filberts for wind breaks and wildlife, Willows and Poplars for water control and forage, hedgerows to naturally keep in livestock, etc. — all depending on the farm's needs. They also use fencing and roadways to partition off animal control or ditching, raingarden/ bioswale areas to direct stormwater, protection of livestock from the public — there are many reasons to protect the flexibility of nonfarmed buffers. "No touch" native vegetative buffers allow invasive species to take over, the spread of diseased Douglas Fir heavily present on the Riches' property into healthy areas, and the problem of shading affecting production and the health of the farm. Farms need flexibility for good land management. The nonfarm buffer APPEAL OF ADMINISTRATIVE DECISION - 13 of 23 200 Winslow sl REYNOLDS LAW OFFICE 380 200 Winslow Way West, Suite 380 [90373 -I] Bainbridge Island, WA 98110 (206) 780 -6777 (206) 780.6865 (Facsimile) El 0 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 protects that ability and the reasonable use of agricultural lands, while native vegetation buffers are meant for private residential and commercial areas. A 25 -foot strip of Native Vegetation does not protect wildlife — it is actually scientifically the most dangerous zone for protection from predators, One last thought — open space includes pastures as a preferred protected use. Native Vegetative Buffers prevent the management of healthy buffers in some cases depending on topography. 4.26 Project Condition No. 12 is impractical. The time to fully implement a farm, build a home, shop, greenhouses, develop pasture, install fencing, well, septic, raise and acquire animals, etc. within a year is impractical and financially difficult. Pastures take time to develop. Building a home and supporting structures take a significant amount of time with a large portion of the process out of the owners' control (inspections, etc.). Developing a healthy flock or herd is not something to just "implement," Crops take time to plant according to the appropriate season and readiness of the fields. Thoughtful planning for long term sustainability is important. In addition, a working family farm physically takes a long time to develop. Monitoring is likely to be subjective based upon personal interpretation of what is implemented, developed or complete. The revocation of the permit for noncompliance and the revegetation and fines are excessive if the conditions are not met. This strong -armed approach is not community minded, nor does it meet the Comprehensive Plan or values statement of the City. 4.27 Project Condition No. 13 is impractical, as more fully set out above. The residual forested area on Appellants' Farm Plan is along Sands Avenue and the property developed to the north. A nonfarmed buffer does not require the retention of trees and is designated separately in the Code to allow for nonfarmed use. DENNIS D. REYNOLDS LAW OFFICE APPEAL OF ADMINISTRATIVE DECISION - 14 of 23 200 Winslow way West, suite 380 [90373 -1] Bainbridge Island, WA 98110 (206) 780 -6777 (206) 780 -6865 (Facsimile) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 V. SUMMARY OF GROUNDS FOR APPEAL 5.0 Appellants reallege their allegations set out in Sections I — IV of the appeal. 5.1 For the reasons set out herein, the City's Decision is clearly erroneous. Statement of Factual Errors 5.2 The Decision is in error to the extent it "finds" that any of the challenged project conditions are required to ameliorate impacts directly related to the proposed development and use. 5.3 The Decision is in error to the extent it "finds" that any of the challenged project conditions are reasonable, capable of being accomplished and/or are roughly proportionate to expected impacts caused by the proposed development and use. Statement of Legal Errors 5.4 The Decision is in error by imposing certain arbitrary and illegal project conditions as identified herein. 5.5 The Decision is in error by failing to apply the exemptions set out in the Bainbridge Island Code, Section 15.18.040.A -F. 5.6 The Decision is in error by failing to apply exemptions set out in the City Code, BIMC Section 16.22.040.E.H 5.7 The Decision is in error by applying its terms to activities that can be approved by issuance of a single - family residential building permit as further set out in BIMC Section 18.15.010(B.1. 5.8 The Decision is in error in interpreting the City Code `s provisions for a "non - farmed buffer" (BIMC Section 16.22.060.A.2) require a "no touch" condition and an affirmative obligation to maintain the buffer in its natural condition in perpetuity. BIMC APPEAL OF ADMINISTRATIVE DECISION - 15 of 23 200 Wi REYNOLDS LAW OFFICE 200 Wnssll ow Way West, Suite 380 [90373 -I] Bainbridge lsland,WA 98110 (206) 780 -6777 (206) 780 -6865 (Facsimile) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 it-61 `ail 21 22 23 24 25 26 Chapter 16.26 demonstrates buffers are for the protection of farmlands from non - agricultural properties, not the native vegetative buffers within the farm. This vegetation retention condition has significant financial impacts as well as agricultural development restrictions. The Decision's interpretation of nonfarmed buffer, implementation timeline, monitoring, revegetation and fines and replanting ratio of 3:1 are not consistent with the Code for agricultural use and are legal error. It also means Appellant's will be required to pay property taxes on a good portion of their property they will never be allowed to use. 5.9 The no touch buffer requirement is an exaction. Pursuant to state law, RCW 82.02, local governments must establish a "nexus" between a restriction on the property and the identified impact, as well as a limitation that the developer's required contribution to the solution of the problem be proportionate to his contribution to the problem itself. To meet RCW 82.02.020's `reasonably necessary" requirement, or nexus, an ordinance or land use decision containing a development condition or exaction must be tied to a specific, identified impact of a development on a community: [A condition on development] must "mitigate a direct impact that has been identified as a consequence of a proposed development" ... reflects the legislature's adoption of the "nexus" requirement imposed by case law on governmental exactions and conditions. Nollan v. California Coastal Comm'n, 384, U,S. 825 (1987). Simply stated, there must be a nexus, a direct connection, `between the condition and the original purpose of the building restriction." Nollan, 483 U.S. at 837. Where the exaction or other condition does not mitigate an impact of the development, it is an unlawful exercise of police power. Unlimited v. Kitsap Cy., 50 Wn. App. 723, 727 (1988). Cobb v. Snohomish County, 64, Wn. App. 451, 467 -68 (Agid J., concurring and dissenting in part) (Internal citations modified); see also Isla Verde Int'l Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 761 (2002); Henderson Homes, Inc. v. City of Bothell, 124 Wn.2d 240,242- 44 (1994). APPEAL OF ADMINISTRATIVE DECISION - 16 of 23 D 0 Winslow wWay DSLAW OFFICE 200 Winslow Way West, Suite 380 [90373 -11 Bainbridge Island, WA 98110 (206) 780 -6777 (206) 780 -6865 (Facsimile) I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5.10 The challenged conditions are illegal under RCW 82.02 because of the lack of nexus and /or disproportionate impact. 5.11 Although a governmental agency can condition or deny a proposal based on SEPA, the agency must comply with certain statutory and regulatory requirements. Cougar Mountain Associates v. King County, 111 Wn.2d 742, 752, 765 P.2d 264 (1988). Those requirements are contained in RCW 43.21C.060, which limits the exercise of substantive SEPA authority to condition preliminary plat and other land use approvals. See also BIMC § 16.04.160, Substantive Authority. First, a project may be conditioned or denied "only to mitigate specific environmental impacts" identified in the environmental documents prepared under SEPA. RCW 43.21C.060. Under this statutory limitation on exercise of SEPA substantive authority, land development may be conditioned "only on the basis of specific, proven significant environmental impacts ". Levine v. Jefferson County 116 Wn.2d 575, 807 P.2d 363 (1991), quoting Nagatani Bros., Inc. v. Skagit Cy. Bd. ofComm'rs, 108 Wash.2d 477, 482, 739 P.2d 696 (1987), The "specific adverse environmental impacts" that a developer may be required to mitigate must be directly related to the proposed development. That is, mitigation measures can only be imposed "to the extent attributable to the identified adverse impacts" of the proposal. WAC 197- 11- 660(d). These identified adverse impacts must also be "significant adverse impacts," as some impacts are always present in any land use. See, e.g., WAC 197 -11- 350(2); RCW 43.21C.060; MaranathaMininglnc. v. Pierce County, 59 Wash. App. 795, 801 P2d 985 (1990). The term "significant" is defined in SEPA to mean "a reasonable likelihood of more than a moderate adverse impact on environmental quality." WAC 197 -11- 794(1). Second, the mitigating condition imposed under SEPA must be based "upon policies identified by the appropriate governmental authority and incorporated APPEAL OF ADMINISTRATIVE DECISION - 17 of 23 200 Wi ud REYNOLDS LAW OFFICE 200 Wnslow Way West, Suite 380 [90373 -1] Bainbridge Island, WA 98110 (206) 780.6777 (206) 780 -6865 (Facsimile) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 into regulations, plans, or codes which are formally designated by the agency." RCW 43.21 C.060. Third, mitigation conditions imposed under authority of SEPA "shall be reasonable and capable of being accomplished." RCW 43.21C.060. The challenged project conditions are illegal because in violation of the stated standards. 5.12 Under the Growth Management Act, RCW Chapter 36.70A, land use decisions must be consistent with and implement the Comprehensive Land Use Plan. The Decision is in error because inconsistent with the Comprehensive Plan. The Five Overriding Principles that Guide the Plan as referenced in the COBI Comprehensive Plan — "1. Preserve the special character of the Island which includes forested areas, meadows, farms, marine views, and winding roads bordered by dense vegetation." and "4. The costs and benefits to property owners should be considered in making land use decisions." were overlooked by Staff. 5.13 The Decision is in error because it conflicts with City Code provisions as to allowed use and the purposes of a buffer in the context of agricultural practices. See BIMC Chapter 16.22.060 Farm Plan and Agricultural Use, 25 feet nonfarmed buffer as referenced in BIMC § 18.09.030(iii) Grazing to property lines, and (iv) Buildings and hedgerows in heavy use areas); Chapter 16.24, Farmland Findings; Chapter 16.26 Right to Farm; Administrative Manual on Farm Use, pages 27 -28. 16.26.010 Purpose. The conservation and protection of agricultural lands on Bainbridge Island are considered economically and nutritionally beneficial. Protection of these lands will enhance the cultural and economic diversity and retain the Island character of the Island. (Ord. 98 -20 § 14, 1998) 16.26.020 Definitions. A. "Agricultural land" means land primarily devoted to agricultural operations. B. "Agricultural operation" means any facility or activity for the production or intent of production for commercial or family use APPEAL OF ADMINISTRATIVE DECISION - 18 of 23 D 0 Wino w Way s LAwoe 380 200 Winslow Way West, Suite 380 (90373.11 Bainbridge lsland,WA 98110 (206) 780 -6777 (206) 780 -6865 (Facsimile) Ire, 11 12 13 14 15 16 17 18 19 20 21 22 23 24 26 26 purposes of dairy, apiary, livestock, camelids, ratites, vegetable or animal products, and crop products including, but not limited to, ornamental crops. Incidental vegetable gardening, landscaping and keeping common pets are not defined as agriculture. C. "Best management practices" means conservation practices or systems of practices and management measures that: 1. Control soil loss and protect water quality from degradation caused by nutrients, animal waste, toxins and sediment; and 2. Minimize adverse impacts to surface water and groundwater flow, and to the chemical, physical, and biological characteristics of critical areas. BMPs are defined by the State of Washington Department of Agriculture, Washington State Department of Ecology, Washington State Department of Health, Kitsap Conservation District, and other professional organizations. D. "Registered agricultural lands" means lands that are either taxed as open space agricultural land, lands for which a farm plan is on file with the city or lands for which the operator has filed a letter with the city that states that the operation will be conducted in compliance with best management practice. (Ord. 98 -20 § 14, 1998) 16.26,030 Right to farm. A. The city declares that an agricultural operation in conformance with agricultural best management practices is not a public or private nuisance, B. No agricultural operation or any of its appurtenances will be considered by the city to be or become a nuisance, private or public, by any changes in or on the surrounding land; provided, that the provisions of this subsection shall not apply whenever a nuisance results from the unlawful operation of any such agricultural operation or its appurtenances. (Ord. 98 -20 § 14, 1998) 16.26.040 Standards. A. All plats, development permits, and building permits issued for development activities on or within 300 feet of lands registered as agricultural lands and open space will contain a notice that the subject property is within or near agricultural lands on which a variety of commercial activities may occur that are not compatible with residential development. B. All subdivisions, plats and PUDs shall provide an adequate buffer and/or cluster development from agricultural operations. (Ord. 98 -20 § 14, 1998) APPEAL OF ADMINISTRATIVE DECISION - 19 of 23 200 Winslow sl w Way OS LAW OFFICE [90373.1] Bainbridge Winslow Way West, Suite 380 Bainbridge Island, WA 98110 (206)780.6777 (206) 780.6865 (Facsimile) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Farm Management Plan In order to exceed maximum animal density allowances provided for in BIMC 18.09.030, a farm management plan approved by the City, its designee, or a qualified third party must be implemented and maintained. The farm management plan shall contain the following A. Basic site plan, with the following additional information 1. Adjacent residences 2. location and area of all pasture area(s), shelter structure(s), compost and manure storage, B. Description of the type of equipment necessary or intended for use in each season and the frequency and duration of anticipated use; C. Disclosure of any intent to spray or otherwise apply agricultural chemicals or pesticides, frequency and duration of application, and the plants, diseases, pests or other purposes they are intended for; D. Emergency response plan and emergency response contacts E. Description of the potential impacts of animal agriculture and use of applicable National Resource Conservation Service (MRCS) conservation practice standards or equivalent measures to mitigate impacts, including: 1. Water Quality and Soils. Impacts of irrigation run -off on adjacent properties, water bodies and environmentally critical areas, and proposed sediment and erosion control measures. 2. Noise and Odor. Impacts related to the location on the lot of the animal pasture and shelter, any trash or compost storage areas, any farm stand or additional accessory structure, and any other noise - generating or odor - generating equipment and practices. 3. Agricultural Chemicals. Impacts related to the use of chemicals, including any manure, fertilizer and pesticide. 4. Mechanical Equipment. Impacts related to the operation of equipment, including noise, odors, and vibration. 5. Traffic and Parking. Impacts related to the number of staff onsite during work hours, and the number of potential visitors regularly associated with the site. 6. Visual Impacts and Screening. Visual impacts relating to the proposed nature, location, design, and size of proposed features, structures and activities, including the location of pasture, composting activities and manure storage, and any existing or proposed screening. APPEAL OF ADMINISTRATIVE DECISION - 20 of 23 200 Winslow sl REYNOLDS LAW Suite 380 200 Winslow Way West, Suite 380 [90373.11 Bainbridge Island, WA 98110 (206) 780 -6777 (206) 780 -6865 (Facsimile) 1 2 3 4 5 6 7 8 K 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5.14 The City has illegally used and applied proposed Code changes which has not been adopted by the City Council and made part of the BIMC. 5.15 The Decision illegally applies non - promulgated standards and requirements. 5.16 The Decision illegally applies interpretation of unambiguous City Code provisions which interpretations conflict with the plain meaning of the language and intent of the law. 5.17 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). 5,18 The right to build on one's property is a fundamental attribute of property ownership and exists without regard to zoning laws, which operate as restrictions on the use of property. Nollan v. California Coastal Commission, 483 U.S. 825, 833 n.2, 107 S. Ct. 3141, 97 L. Ed.2d 677 (1987) (the "right to build on one's own property — even though its exercise can be subjected to legitimate permitting requirements — cannot remotely be described as a `governmental benefit."'); River Park v. City of Highland Park, 23 F.3d 164, 166 (7th Cir. 1994) ( "An owner may build on its land; that is an ordinary element of a property interest. Zoning classifications are not the measure of the property interest but are legal restrictions on the use of property. "); see also Palazzolo v. Rhode Island, 533 U.S. 606, 627 (2001) (explaining that government cannot extinguish a person's rights in his or her property by regulation). 5.19 Although government may restrict an owner's property rights through regulation (in this case, reasonably regulating clearing and tree removal), the regulatory APPEAL OF ADMINISTRATIVE DECISION - 21 of 23 200 Winslow sl w Way OS LAW OFFICE 200 Winslow Wey West, Suite 380 [90373 -I] Bainbridge lsland,WA 98110 (206)780.6777 (206) 780 -6865 (Facsimile) K 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 M rz1) 21 22 23 24 25 26 process does not negate the very existence of those rights — a person's property rights exist regardless of the regulatory restrictions that burden those rights. See Nectow v. Cambridge, 277 U.S. 183,187, 48 S. Ct. 4475 72 L Ed. 842 (1928); Euclid v. Ambler Realty Co., 272 U.S. 365, 384, 47 S. Ct. 114, 71 L. Ed. 303 (1926). A property owner who submits a land use application is not requesting a government- created benefit; he or she is following the procedures required to exercise the right to make use of private property. Nollan, 483 U.S. at 833 n.2. The City's unreasonable partial denial violates Appellants' protected rights to maintain and protect their property and persons who use it. 5.20 In Washington, the Growth Management Act (GMA) requires that governments plan their growth, while also protecting the private property rights of individuals: "Private property shall not be taken for public use without just compensation having been made. The property rights of landowners shall be protected from arbitrary and discriminatory actions." RCW 36.70A.020(6), The City's partial denial is arbitrary as set out herein. 5.21 The GMA, RCW 36.70A.020(7), provides that: "... applications for ... local government permits should be processed in a ... fair manner to preserve predictability." The Application in question was not processed in a fair or timely manner. 5.22 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. VI. APPEAL FEE 6.0 The $530 appeal fee is tendered with this appeal. APPEAL OF ADMINISTRATIVE DECISION - 22 of 23 (90373 -11 DENNIS D. REYNOLDS LAW OFFICE 200 Winslow Way West, Suite 380 Bainbridge Island, WA 98110 (206) 780 -6777 (206) 780 -6865 (Facsimile) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 VII. EXPEDITED APPEAL 7.0 Based upon financial constraints and weather conditions favorable to land development, Appellants request that the Examiner set this appeal for hearing as soon as possible consistent with public notice requirements. 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 remove , vacate and otherwise not enforce the challenged project conditions. 8.1 Grant any other further relief that is just and fair under the circumstances. i DATED this s day of January, 2017. DENNIS D. REYNOLD LAW OFFICE By�� ! -� Dennis D. Reynolds, WSBA #04762 Attorneys for Appellants Crystal and Yurie Rich APPEAL OF ADMINISTRATIVE DECISION - 23 of 23 [90373 -1) DENNIs D. REYNOLDS LAW OFFICE 200 Winslow Way West, Suite 380 Bainbridge Island, WA 98110 (206) 780 -6777 (206) 780 -6865 (Facsimile) RICH (Crystal & Yuri) — Appeal of Administrative Decision EXHIBIT I NOTICE OF ADMINISTRATIVE DECISION AND MITIGATED DETERMINATION OF NONSIGNIFICANCE (MDNS) The City of Bainbridge Island has made a decision concerning the following land use application: Date of Issuance; December 22, 2016 Project Name & Number: Rich PLN50468 VEG Project Type: Vegetation Management Permit Applicant: Crystal and Yurie Rich Owner: Crystal and Yurle Rich Date of Application: June 21, 2016 Complete Application: November I1, 2016 Project Site &Tax Parcel: 8236 Sands Avenue N /Tex parcel number 222502.3. 013.2008 Project Description: Vegetation management permit for clearing of 6.98 -acre parcel for conversion to residential and agricultural use. Permit Decision: The application is approved with conditions, The staff report, containing the statement of facts upon which the decision, including conditions, is based on the conclusions of law derived from those facts, is available to the public upon request. The decision becomes effective after 14 days from the date of issuance, or after January 5, 2017. SEPA Determination: The City of Bainbridge Island (lead agency) has determined that the proposal does not have probable significant impact on the environment if measures to mitigate the proposal are used. This MDNS is issued under WAC 197 - 11.355. This determination was made and mitigation measures were applied after review of a completed environmental checklist and other information on file with the lead agency. This information is available to the public upon request. Conditions of approval and mitigation measures are included in this notice. An environmental impact statement (EIS) is not required under RCW 43.21C.030(2)(c), Responsible Official: Gary R. Christensen, AICP Department of Planning and Community Development Address: City of Bainbridge Island 280 Madison Avenue N Bainbridge Island, Washington 98110 Dale Appeal Procedure: You may appeal this administrative decision and /or determination by submitting a written appeal and paying a $530 filing fee to the City Clerk, at 280 Madison Avenue North, Bainbridge Island, Washington 98110, in accordance with the procedures set forth in the Bainbridge Island Municipal Code, Section 2,16.020(P) and /or 16.04.170 by no later than 4:00 p.m. an January 5, 2017, You should be prepared to make specific factual objections, Mitigation Measures for SEPA This threshold detennination is for file number PLN50468. A threshold Determination: determination under the State Environmental Policy Act in no way allows construction work to commence without appropriate construction permits, such as a building or grading permit. Mitigation measures become conditions of approval for the permit. 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. 14. Any non - approved tree or vegetation removal shall be subject to the provisions of BIMC 16.22.097, Permit revocation and penalties. 15. Any retained trees that become hazardous during or after the conversion within the areas of retained vegetation may, upon evaluation and recommendation by a professional ISA- certified arborisy be removed with a PCD - approved clearing permit and an approved replanting plan. This replanting plan will require a replacement ratio of three (3) replanted trees for each one (1) removed, and shall be required to provide like - for -like replacements (deciduous•for- deciduous or evergreen - for - evergreen). All replacements will be required to be at least 6.8 feet in height if evergreen or 2- inches in caliper if deciduous, and will be subject to an approved monitoring Program. RICH (Crystal & Yuri) — Appeal of Administrative Decision EXHIBIT 2 DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT STAFF REPORT Date: December 20, 2016 To: Gary R, Christensen, AICP From: Christy Carr, AICP Project: Rich Vegetation Management File Number: PLN50468 Applicant: Crystal and Yurle Rich PO Box 11604 Bainbridge Island, Washington 98110 Request: Vegetation Management Permit for clearing over 5,000 board feet on a 6.98 - acre parcel to allow for future residential and agricultural use. Location: 8236 Sands Avenue Parcel number 222502 -3- 013 -2008 Project Overview A vegetation management permit Is required for removal of over 5,000 board feet of timber, The applicant is proposing to clear the majority of the 6.98 -acre lot to allow for future residential and agricultural use. The applicant submitted a vegetation management permit application on June 21, 2016 (Attachment A). Environmental Review This project is subject to review under the State Environmental Policy Act (SEPA), as stipulated In the Washington Administrative Code (WAC 197 -11 -800) and the Bainbridge Island Municipal Code (BIMC 16.22.050.8.2). The applicant submitted a SEPA checklist (Attachment B). 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. The 14 -day comment period expired on July 15, 2016. Several neighbors requested Information about the application and one public comment was received, signed by 10 residents of NE quail HIII Road (Attachment C). The comment expressed concern about the existing road conditions, Ingress and egress, road drainage, access from Sands Road and overall feasibility of use of NE Quail HIII Road for a haul route. In conjunction with the Notice of Decision for this application, the City (acting as lead agency) will Issue a threshold determination for this proposal. (Rich PLN50468) Page 1 of 7 Figure 1. Project Site and Vicinity Figure 2, Surrounding Zoning P Welden Ln oil - U N NE High School Rd NE NOW g�ogklyrj Rd ' _ ¢ uatt HIII Rd I i QD (Rich PLN50468) Page 2 of 7 STAFF ANALYSIS of Fact — 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 Kepowsln gravelly sandy loam Existing Site Development None Access Sands Road /Quail Hill Road Public Services and Utllitles None Zoning /Comprehenslve Plan R -0.4 Designation Surrounding Zoning /Comprehensive R -0.4 (See Figure 2) Plan Designation Surrounding Uses Single -famll residential II. Bainbridge Island Municipal Code An analysis of the proposal's consistency with applicable sections of the Bainbridge Island Municipal Code (BIMC) is provided below, A, Title 16.22.030.1 Applicability: Vegetation management standards applyto "Undeveloped properties or developed properties which can be further subdivided, including those properties under two acres in size which are exempt under a Class I forest practice permit ", As an undeveloped property, vegetation management standards are applicable. B. Title 16,22.040 Exemptlons: This proposal does not meet any of the provisions listed as exemptions. C. Title 16,22,030,A Vegetation Management Permit: Since It is the applicants' Intention to convert this property to a nonforest use and to avoid a six -year moratorium on development, it is required that they submit, and receive approval of, a vegetation management permit application. They are also required to receive approval from the Washington State Department of Natural Resources (DNR). Copies of any approvals Issued to the applicant by DNR shall be provided to the City once approved. D. Title 16,22.050.0 Application Procedure: The applicant submitted application materials pursuant to BIMC 16,22.070, Including a SEPA checklist. A Notice of Incomplete Application was sent to the applicant on July 5, 2016 because the application materials were deficient. The applicant submitted additional Information on July 11, 2016 (Attachment D), The applicant was provided the Development Engineer's review comments (Attachment E; September 7, 2016) noting that a Construction Stormwater General Permit from the Washington State Department of Ecology and Construction Stormwater Pollution Prevention Plan (SWPPP) are required, The applicant submitted a Drainage Plan (Attachment F; completed by Seabold Engineering LLC, November 11, 2016). (Rich PLN60468) Page 3 of 7 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. 8. A construction entrance must be Installed from the public right -of -way (NE Quail HIII Road).The entrance shall be located to minimize removal of existing trees In the required 25 -foot nonfarmed buffer and be aligned as close to 90 degrees from the public right -of -way as feasible. 9. A right -of -way permit from the City's Department of Public Works must be obtained by the applicant for installation of the construction entrance prior to any clearing, vegetation removal, or vegetation disturbance on the property. A copy of this permit shall be provided to the Department of Planning and Community Development (PCD) prior to commencing any clearing activity, 10. The haul route and any future access road /driveway shall be located outside the required 25- foot nonfarmed buffer. 11. No drainage features (including bioretention cell and grass lined swales shown In the Drainage Plan shall be located within the required 25 -foot nonfarmed buffer with the exception of the bioretention cell outlet. 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 wlndNrm 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 arborlst 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. 14. Any non - approved tree or vegetation removal shall be subject to the provisions of BIMC 16.22.097, Permit revocation and penalties. 15. Any retained trees that become hazardous during or after the conversion within the areas of retained vegetation may, upon evaluation and recommendation by a professional ISA - certified arborist, be removed with a PCD- approved clearing permit and an approved replanting plan. This replanting plan will require a replacement ratio of three (3) replanted trees for each one (1) removed, and shall be required to provide like- for -Ilke replacements (deciduous - for - deciduous or evergreen- for - evergreen). All replacements will be required to be at least 6 -8 feet in height if evergreen or 2- inches in caliper If deciduous, and will be subject to an approved monitoring program. IV. Appeal Procedures This administrative decision is appealable to the Hearing Examiner in accordance with the procedures set forth in BIMC 2.16.020.P (Rich PLN50468) Page 6 of 7 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 (Rich PLN50468) Page 7 of 7