2017-02-03 ORDER ON BRIEFING AND DENYING MOTIONFebruary 3, 2017
CITY OF BAINBRIDGE ISLAND, WASHINGTON
HEARING EXAMINER
ORDER ON BRIEFING AND DENYING MOTION
Proceeding:Rich Vegetation Management and SEPA Appeals
File number:PLN50468
Appellants:Crystal and Yurie Rich
Location:8236 Sands Avenue
1.On behalf of his clients, Crystal and Yurie Rich, Attorney Dennis Reynolds has moved to
reschedule a combined hearing on appeals of a v egetation management permit and its associated SEPA
review. The appeal is now scheduled for February 22, 2017. Mr. Reynolds has moved to have it reset
one or two weeks earlier, citing hardship on the appellants resulting from further delay. A supporting
declaration from Crystal Rich asserts that an unwarranted level of delay has already been experienced
by the appellants resulting from the City's prolonged review process, with the consequence that once
manageable seasonal deadlines for going forward with their project now have been jeopardized.
2.The City opposed the appellants' motion based on an allegation of a minimal benefit to be
gained compared to the inconvenience caused by rescheduling. The City argues that meeting code
notice requirements for a public hearing would preclude rescheduling the hearing more than a few days
earlier than February 22, 2017.
3.The Rich appeal challenges four conditions within the City's December 22, 2016, Notice of
Administrative Decision and Mitigated Determination of Nonsignificance (MDNS), more specifically,
one SEPA and three project conditions.
4.The land use provisions within the Bainbridge Island Municipal Code offer great detail on
substantive requirements but are often sketchy in describing basic legal procedures. The procedures
governing hearings and their notice requirements generally are collected at BIMC 2.16.020. The
principal focus is on land use applications necessitating public hearings, for which rather clear
instructions are provided. But for lesser events like administrative appeals concrete direction is often
absent, and what is provided is occasionally vague and incomplete, forcing reliance on inferences and
related provisions found in other parts of the code. These issues affect both jurisdictional and notice
requirements. No helpful supplementary definitions are supplied.
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5.The City Attorney's prudent approach is that, where doubt exists, the full panoply of notice
requirements should be employed. Too much notice creates no judicial review problems down the
road, whereas too little does. There is a critical sentence within BIMC 2.16.020.P1(i) (Appeal Hearing)
that reads, “The appeal shall be held at an open record public hearing.” The subsection section
heading appears to deal with appeal hearings generally. But the three sentences in the paragraph
immediately preceding the sentence quoted above all relate specifically to SEPA appeals, while the
sentence following seems more general in scope. Next there are three numbered subparagraphs, the
first and third specific to SEPA appeals with the one in between more generally framed. Weird stuff.
So should the quoted sentence be viewed as concluding the SEPA discussion or beginning the recitation
of general requirements? Only God knows for sure, and She isn't saying.
6.Mercifully, the fact that the vegetation management permit appeal is conjoined with a challenge
to the SEPA conditions provides us with a path out of the procedural thicket. The SEPA appeal
requirements are relatively more clear than those for the veggie appeal and, being arguably more strict,
will govern the overall process for the consolidated appeal hearing. To put it another way, no matter
what interpretation is given to BIMC 2.16.020.P1(i), the requirement for “an open record public
hearing” necessarily applies to a SEPA appeal. More specifically, within the SEPA provisions
themselves BIMC 16.04.170.D provides that an “appeal shall be heard by the hearing examiner at a
public hearing, notice of which shall be published once and mailed to the appellant and delivered to
the responsible official at least 15 days before the public hearing.”
7.The City Attorney is therefore correct: at most an inconsequential few days would be gained by
rescheduling the hearing as appellants requested because notice requirements, including one for
publication, must be met for the SEPA appeal. The motion to reschedule thus will be denied as causing
more inconvenience than it would be worth. But in order to keep the regulatory ball inching forward,
the order below will require that legal briefing by the parties be submitted no later than the opening of
the appeal hearing unless both the appellants and City mutually agree to a later date.
ORDER
A.The appellants' motion to reset the hearing date is DENIED. The hearing will be held on
February 22, 2017, as currently scheduled.
B.Any legal briefs from the parties shall be submitted no later than the opening of the hearing on
February 22, 2017, unless both the appellants and the City mutually agree to a later date.
ORDERED February 3, 2017.
___________________________________
Stafford L. Smith, Hearing Examiner
City of Bainbridge Island
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/s/ Stafford L. Smith