2017-01-05 APPEAL OF ADMINISTRATIVE DECISION1
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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)
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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
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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.
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DENNIs D. REYNows LAW OFFICE
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Bainbridge Island, WA 98110
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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.
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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
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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
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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
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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
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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,
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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,
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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
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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
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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
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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
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[90373 -1] Bainbridge Island, WA 98110
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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
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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).
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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
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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
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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
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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.
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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
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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
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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