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2017-01-31 RESPONSE TO MOTION FOR EXPEDITED HEARING1 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, Defendant. No. PLN50468 VEG RESPONSE TO MOTION FOR EXPEDITED HEARING DATE The City of Bainbridge Island respectfully requests the hearing examiner deny Appellants Crystal and Yurie Rich's motion for an expedited hearing date. The hearing has already been expeditiously scheduled in coordination with the hearing examiner's schedule and in consideration of the required 14 -day notice period. At this point, the hearing could only be moved at the most to 9 days earlier, which is unreasonable given the coordination that would need to occur and the parties' needs to prepare for hearing. Appellants state the appeal requires a "closed record public hearing" and one sentence later state "the parties can set the ppen record hearing on any date they desire." Regardless of Appellants' inconsistent description, Appellants' combined SEPA and administrative decision appeal requires an open record public hearing. BIMC 2.16.020(P)(1)(g) provides that following receipt of an appeal of an administrative decision, the hearing examiner shall set a "public {MBF1541364.DOC;1/13023.050016/ } RESPONSE TO MOTION FOR EXPEDITED HEARING DATE - I OGDEN MURPHY WALLACE, P.L.L.C, 901 Fifth Avenue, Suite 3500 Seattle, Washington 98164 -2008 Tel: 206.447.7000/Fax: 206.447.0215 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 hearing." BIMC 2.16.020(P)(1)(i) expressly provides that an "appeal shall be held at an open record public hearing." Although this section could be unreasonably interpreted to only apply to SEPA appeals (which the current appeal includes anyway), it is intended to apply to all administrative and /or SEPA appeals to the hearing examiner. This is evidenced by BIMC 2.16.020(P) which contains provisions expressly covering both SEPA and purely administrative decision appeals. Additionally, subsection (i) which requires open record public hearings, contains language expressly applying to both SEPA appeals and appeals of "substantive decisions made by the City." Furthermore, Chapter 2.16 BIMC, the Land Use Review Procedures chapter, does not contain a "closed record" appeal procedure. Likewise, the Hearing Examiner procedure rules adopted by City resolution, only describe an open record appeal hearing for administrative decisions. If the BIMC required a closed record appeal, there would be procedural and substantive rules governing what the record entails and how the record should be admitted or supplemented. As the appeal requires a public hearing (which Appellants admit, even if they allege it should be closed), the notice requirements of BIMC 2.16.020 apply. Appellants' inexplicitly allege that notice is only required to the applicant /appellant. However, BIMC 2.16.020(K)(6)(b) expressly governs the notice a hearing examiner is required to provide for an appeal hearing. This action clearly constitutes an appeal hearing. As such, the hearing examiner is required to provide notice by: I . Posting in official posting places of the city, including the city website; and ii, Publishing notice in the official newspaper of the city at least 14 days prior to the hearing or as otherwise provided by law; and iii. Distributing notice to the applicant and appellant, if applicable; and {MBF1541364.DOCJ/]3023.050016/ } OGDEN MURPHY WALLACE, P.L.L.C. RESPONSE TO MOTION FOR 901 Fifth Avenue, Suite 3500 Seattle, Washington 64 EXPEDITED HEARING DATE - 2 9 Tel: : 206.447.7000/Fax: 2006.447.47.08 0215 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 iv. Distributing written notice to property owners at addresses listed on the property tax records of Kitsap County within 500 feet of any boundary of the subject property and including any property within 500 feet of any contiguous property in the applicant's ownership; and V. Distributing notice to any person who has submitted a written request for notice of the hearing; and vi. Posting the subject property in a manner prescribed by the City. BIMC 2.16.020(K)(6)(b)(i -vi) (emphasis added). By using the conjunction "and" between notice provisions, the BIMC requires each type of listed notice for a public hearing. As set forth above, the BIMC requires an open record public hearing and notice which includes at least a 14 -day notice period. The hearing has already been expeditiously scheduled in consideration of the notice period, the hearing examiner's scheduling needs, and the need for parties to prepare for hearing. Accordingly, the City requests the hearing examiner deny Appellants' motion. DATED this 31St day of January, 2017. {MBF1541364.DOCJ/13023.050016/ 1 RESPONSE TO MOTION FOR EXPEDITED HEARING DATE - 3 OGDEN MURPHY WALLACE, P.L.L.C. By James E. ney, W A #11058 Meghan .Frazer, WSBA #40768 Attorney for Defendants City of Bainbridge Island OGDEN MURPHY WALLACE, P.L.L.C. 901 Fifth Avenue, Suite 3500 Seattle, Washington 98164 -2008 Tel: 206.447.7000/Fax: 206.447.0215 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 DECLARATION OF SERVICE I, Charolette Mace, make the following true statement. On the date below, I provided the foregoing document in the following manner: Original sent via U.S. Mail, and E -mail to: Stafford Smith, Hearing Examiner City of Bainbridge Island 280 Madison AVE N Bainbridge Island, WA 98110 Email: jsmith a bainbrid uwa.gov Copy via U.S. Mail and E -mail to: Dennis D. Reynolds DENNIS D. REYNOLDS LAW OFFICE 200 Winslow Way West, Suite 380 Bainbridge Island WA 98110 Email: dennis@ddrlaw.com I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct. EXECUTED at Seattle, Washington this 31 st day of January, 2017. {MBF1541364.DOC;1/13023.050016/ } RESPONSE TO MOTION FOR EXPEDITED HEARING DATE - 4 Charolette Mace, Legal Assistant OGDEN MURPHY WALLACE, P.L.L.C. 901 Fifth Avenue, Suite 3500 Seattle, Washington 98164 -2008 Tel: 206.447.7000/Fax: 206.447.0215