2017-03-01 POST HRG RESPONSE BRIEF COBI1
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BEFORE THE CITY OF BAINBRIDGE ISLAND
OFFICE OF THE HEARING EXAMINER
CRYSTAL AND YURIE RICH,
Appellants,
kv
CITY OF BAINBRIDGE ISLAND, acting
through its Department of Planning and
Community Development,
Defendant.
No. PLN50468 VEG
POST - HEARING RESPONSE BRIEF
OF CITY OF BAINBRIDGE ISLAND
The following is the City's post- hearing brief as requested at the close of the hearing.
RESPONSIVE ARGUMENT
A. THE PLANNING DIRECTOR'S INTERPRETATION OF THE TERM "NONFARMED
BUFFER" IS ENTITLED TO DEFERENCE.
The Appellants are incorrect in their assertion that the Planning Director's interpretation
of the term "nonfarmed buffer" is not entitled to deference. BIMC 2.16.020.P. Lk expressly
states that when a decision of the Planning Director is appealed, "the decision of the director
shall be accorded substantial weight by the hearing examiner." This requirement is inherently
deferential and requires that the hearing examiner only overturn the decision of the Director if it
was "clearly erroneous." Here, the Planning Director expressly relied upon his interpretation of
the meaning of the term "nonfarmed buffer" in approving the Vegetation Management Permit
and the BIMC requires the Hearing Examiner to defer to that interpretation unless the Appellants
can prove that the interpretation was mistaken.
{JEH1549725.DOC;1/13023.050016/ }
CITY'S POST - HEARING RESPONSE
BRIEF - 1
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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The language Appellants rely on from Sleasman v. Lacey, 159 Wn.2d 639, 151 P.3d 900
(2007) does not dictate a different result. The court in Sleasman was not called upon to construe
an ambiguous ordinance and was instead reviewing an ordinance that was unambiguous on its
face. Id. at 643. The court's statements on ordinance construction were thus dicta and not a
correct statement of the law. See, Milestone Homes, Inc. v. City of Bonney Lake, supra, 145 Wn.
App. at 126 -29 (characterizing the language in Sleasman as dicta and holding that the Sleasman
is limited to unambiguous ordinances). When construing an ambiguous ordinance, the correct
rule is that a court or hearing examiner must give considerable deference to the construction
adopted by those city officials charged with its enforcement. Pinecrest Homeowner's Ass'n. v.
Cloninger & Assoc., 151 Wn.2d 279, 290, 87 P.3d 1176 (2004); Development Services v. City of
Seattle, 138 Wn.2d 107, 117, 979 P.2d 387 (1999); Milestone Homes, Inc. v. City of Bonney
Lake, 145 Wn. App. 118, 127, 186 P.3d 357 (2008); Citizens to Preserve Pioneer Park, LLC v.
City of Mercer Island, 106 Wn. App. 461, 475, 24 P.3d 1079 (2001). Here, the Hearing
Examiner must grant deference to the Planning Director's interpretation as the official charged
with enforcing the nonfarmed buffer provisions. For the reasons set forth in the City's
Prehearing Brief, that interpretation is a logical, code -based construction that reflects the clear
intent of the Bainbridge Island City Council in adopting the Vegetation Management Chapter,
BIMC 16.22. The Director's interpretation must be upheld.
B. THE PLAIN LANGUAGE OF THE BIMC AND THE 2005 STORMWATER
MANUAL REQUIRE THAT THE APPELLANTS OBTAIN A CONSTRUCTION
STORMWATER PERMIT FROM THE DEPARTMENT OF ECOLOGY.
1. The Appellants' Property Meets all Three Prerequisites for Requiring _a
Construction Stormwater Permit.
The evidence presented at the hearing conclusively showed that the Appellants' property
meets all of the prerequisites for requiring a Construction Stormwater Permit and the Appellants
failed to prove that the Development Engineer's decision to require that permit was in error. The
Appellants conceded that they intend to clear more than one acre of land and that stormwater will
{JEH1549725.DOC;1/13023.050016/ }
CITY'S POST - HEARING RESPONSE
BRIEF - 2
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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discharge from their site during construction, but they disputed whether drainage from their site
flows to a water of the state. The evidence clearly showed that it does.
As used in Chapter 90.48 RCW, the chapter that gives the Department of Ecology
responsibility for NPDES permits and the enforcement of the Federal Clean Water Act, the term
I "waters of the state"
includes lakes, rivers, ponds, streams, inland waters, underground
waters, salt waters and all other surface waters and watercourses
within the jurisdiction of the state of Washington.
RCW 90.48.020. Both the City's Development Engineer, Ms. Hitch, and the Appellants'
stormwater engineer, Kelsey Laughlin, agreed that stormwater from the Appellants' property
discharges to roadside ditches or drainage swales along Sands Avenue that eventually, through a
series of culverts and sheet flow across private property, flow into an unnamed creek that
discharges to the headwaters of Eagle Harbor. Testimony of Janelle Hitch; Ex. 6, Attachment F,
Seabold Engineering Report at p. 1. While Ms. Rich disputed the testimony of Ms. Hitch and the
report of her own engineer, Ms. Rich is not a drainage engineer and, respectfully, is not qualified
to provide an opinion concerning whether drainage from her property flows to Eagle Harbor in
the manner described by Ms. Hitch and Ms. Laughlin or whether it infiltrates or "percolates" into
the ground at a location other than what both stormwater engineers concluded. The only expert
testimony in the record indicates that the stormwater from the Rich property flows to an unnamed
creek and thence to Eagle Harbor, both indisputably waters of the state. The requirement that the
drainage flow to a water of the state is thus met and the decision to require a Construction
Stormwater Permit should be upheld.
Moreover, even if the stormwater from the Rich property does not flow all the way to
Eagle Harbor or to the unnamed creek, the drainage Swale and culverts into which it flows
qualify as a "watercourse" under RCW 90.48.020 and thus as a "water of the state." While the
term "watercourse" is not defined in the statute, Merriam - Webster's online dictionary defines it
as "a natural or artificial channel through which water flows." Under this definition, the
{JEH1549725.DOC;1/13023.050016/ }
CITY'S POST - HEARING RESPONSE
BRIEF - 3
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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roadside drainage Swale along Sands Avenue and the downstream culvert system are clearly a
watercourse within the jurisdiction of the state of Washington and therefore a water of the state
to which the Appellants' property discharges drainage. The drainage Swale is also part of the
City's "Municipal Separate Storm Sewer System" ( "MS4 ") that is regulated under the state's
jurisdiction by the Phase II NPDES permit issued by DOE. That the entire system is covered as a
water of the state was DOE was trying to tell Ms. Rich on page 2 of the email exchange admitted
as Exhibit 20. The third prerequisite for application of the Stormwater Permit requirements,
discharge to a water of the state, is met by the Appellants' proposed development.
2. The Appellants are Not Exempt from Comply ring with Minimum Requirements 1-
5 of the Stormwater Manual.
The Appellants argue that they are exempt from compliance with Minimum
Requirements 1 -5 of the 2005 DOE Stormwater Manual, including the requirement to provide a
Stormwater Site Plan (Minimum Requirement #1), because their new development will not
create more than 5000 square feet of impervious surface. Appellants' Hearing Brief at 6 -7.
While it is true that BIMC 15.20.060.0 uses 5000 square feet of impervious surface as one of the
triggers for requiring compliance with the Minimum Requirements, the Appellants' focus on that
trigger conveniently ignores another provision of BIMC 15.20.060.0 that the Appellants'
application clearly meets. BIMC 15.20.060.0 requires compliance with Minimum Requirements
1 -5 whenever a new development "has land disturbing activity of 7,000 square feet or greater."
As used in Chapter 15.20, land disturbing activity means
any activity that results in movement of earth or a change in
existing soil cover (both vegetative and nonvegetative) and /or the
existing soil topography. Land disturbing activities include, but
are not limited to, clearing, grading, filling and excavation.
Compaction that is associated with stabilization of structures and
road construction shall also be considered a land disturbing
activity. Vegetation maintenance practices are not considered land
disturbing activity.
IJEH1549725.DOC;1/13023.050016/ }
CITY'S POST - HEARING RESPONSE
BRIEF - 4
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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(Emphasis added) The Appellants have proposed to clear at least 6 acres of their 6.98 acre site,
well in excess of the 7000 square foot threshold for compliance with Minimum Requirement #1
found in BIMC 15.20.060.C. Ex. 1 at p. 6. The Appellants' argument that they are exempt from
the requirement to provide a Stormwater Site Plan because they are not creating more than 5000
square feet of impervious surface is without merit based on the plain language of the code. The
Director's decision to require a Stormwater Site Plan was not clearly erroneous and must be
upheld.
C. THE REQUIREMENT TO LEAVE TREES IN THE BUFFER AREA IN WINDFIRM
CONDITION AND THE REQUIREMENT TO IMPLEMENT THE FARM PLAN
WITHIN ONE YEAR ARE CODE REQUIREMENTS.
While the Appellants dispute the "practicality" of the permit conditions requiring that
trees in the buffer be left in windfirm condition and that their farm plan be implemented within
one year, these are clearly code requirements that neither the City staff nor the Hearing Examiner
has authority to exempt the Appellants from. BIMC 16.22.060.A.3 requires that "residual forest
areas [that are part of a Vegetation Management Plan] shall be in windfirm condition" and BIMC
16.22.060.A.2 requires that "as a condition of the vegetation management permit, the approved
farm plan shall be implemented within one year after completion of the conversion harvest." As
these conditions are expressly required by code, the Hearing Examiner must uphold them.
CONCLUSION
For all of the reasons set forth above and in the City of Bainbridge Island's Prehearing
Brief, the Appellants have failed to meet their burden of proving that the Director's decision was
clearly erroneous and that decision must be upheld.
DATED this 1 st day of March, 2017.
{JEH1549725.DOC;1/13023.050016/ }
CITY'S POST - HEARING RESPONSE
BRIEF - 5
OGDEN MURPHY WALLACE, P.L.L.C.
James E. aney, SBA #118
Attorneys for R pondent, City f Bainbridge Island
GDEN 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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ECLARATION 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: J'srrlith a7bainbridgewa.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.
{JEH1549725.DOC;1/13023.050016/ }
CITY'S POST - HEARING RESPONSE
BRIEF - 6
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