2017-01-31 RESPONSE TO MOTION FOR EXPEDITED HEARING1
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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,
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
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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
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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
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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