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2017-03-01 SUPPLEMENTAL HRG BRIEF APPELANTSI 2 3 E R R 7 L E 10 11 12 13 fL' 15 W 17 19 20 21 22 23 24 HEARING EXAMINER: STAFFORD SMITH HEARING HELD: FEBRUARY 22, 2017, 9:OOAM 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 SUPPLEMENTAL BRIEF OF APPELLANTS CRYSTAL AND YURIE RICH IN REPLY TO CITY' S HEARING BRIEF Preferred: promoted or advanced to a rank or positions I. INTRODUCTION This case involves imposition of onerous, unjust and illegal project conditions that prevent implementation of a preferred use — agriculture . 2 No deference can be accorded a decision that fails to advance agriculture. The City impermissibly ignored specific performance standards for agriculture. "Statutes which are in pari materia should be read together as constituting one law. Statutes are in pari materia when they relate to the same person or thing, or to the same class of persons or things." Champion v. Shoreline Sch. Dist. , 81 Wn.2d 672, 674, (Wash. 1972) (citing State ex rel. American Piano Co. v. Superior Court, ' httpsJ/ www .mem*am.webster.com/dictionary/preferred Z See BIMC § 18.09.030(A)(C) ( "To the extent possible, agriculture shall be treated as a preferred use in the zones in which it is a permitted use. "). SUPPLEMENTAL BRIEF OF APPELLANTS - 1 of 6 [90373-1] DENNIs D. REYNOLDS LAW OFFICE 200 Winslow Way West, Suite 380 Bainbridge Island, WA 98110 (206) 780-6777, tel / (206) 780 -6865, fax Email: dennis@ddrlaw.com 0 2 3 0 E 0 VA 0 Z U1 11 12 13 14 15 IV 17 W 19 20 21 22 23 24 105 Wash. 676, 178 P. 827 (1919)). Local ordinances must be construed and implemented to achieve their purpose. "The interpretation rules apply equally to municipal ordinances and statutes. Generally, the court interprets the ordinance "to best advance" the municipality's legislative purpose." Eugster v. City of Spokane, 118 Wn. App. 383, 389, 76 P.3d 741, 746 (Wash. Ct. App. 2003). Construing a non -farm buffer in a way to prevent agriculture activity on a parcel zoned for that use impermissibly fails to effectuate the purposes of the Code. II. ARGUMENT A. The Full Statutory Scheme: Trees and Agriculture L . M . . BIMC Chapter 16.22, states that a vegetation management permit must meet "All other provisions of this Code." See BIMC§ 16.22.050C.5. Specific agriculture provisions are found in two places in the Code: (1) the use - specific standards set out in BIMC § 18.09 030A and (2) the Right to Farm provisions found in BIMC Chapter 16.26. The cited standards allow a pasture up to the property line and certain types of farm buildings in the non -farm buffer. BIMC § 18.09 030 3.B.iii and A.2. These Chapters are more specific and control over the more general vegetation management provisions found in BIMC Chapter 16.22. State v. Conte, 159 Wn.2d 797, 803 404, 154 P.3d 194, 197, 2007 Wash. LEXIS 200, *8 (Wash. 2007). In addition, the numerous provisions in the Comprehensive Plan providing that agriculture is to be encouraged because of its historical and cultural importance must be considered since BIMC Chapter 16.22's purpose includes "to implement the comprehensive plan." BIMC§ 16.22.01 OD 2. The City did not consider the many of an actively managed no-farm buffer explained by the witnesses and cited scientific literature. As noted in the Director's Interpretation, there SUPPLEMENTAL BRIEF OF APPELLANTS - 2 of 6 [90373-1] DENNIs D. REYNOLDS LAW OFFICE 200 Winslow Way West, Suite 380 Bainbridge Island, WA 98110 (206) 780-6777, tel / (206) 780 -6865, fax Email: dennis @ddrlaw.com I 2 K 5 I 7 0 0 10 11 12 13 14 15 16 17 EV 19 20 21 22 23 24 is no definition of "nonfarm buffer" under BIMC Chapter 16.22. This is in contrast to the provisions of the "use- specific standards" found under BIMC § 18.09 030, which include the allowance on pasturing and livestock buildings within a buffer (cited previously in this brief). Thus, by Code allowance, a non -farm buffer is not a "no touch" native vegetation buffer. The general nature of Chapter 16.22 is impossible to ignore when the Director relies on the word "left" as used under BIMC § 16.22.060.A.2. The Director's Interpretation takes a giant leap in stating that "the act of leaving" an undefined "nonfarm buffer" means that the "nonfarm buffer" must be kept in a preservation status. The Director's Interpretation also cites the "Findings and declaration of purpose" language under BIMC § 16.22.060. (i.e. "prior to removal" and to "promote incorporation of existing vegetation "). Somehow, however, in apparent haste, the Director's Interpretation completely disregards (a) the clear acknowledgment in the Code language that "removal" will occur (i.e. "prior to removal')* and (b) the meaning of "promote" and "incorporate." As evidence of this disregard, the Director's analysis reaches an abrupt ending with the conclusory statement that "The intention of the chapter as a whole, including this specific provision for a nonfarmed buffer, is retention of the pre - development vegetation." But what about the specific provisions in BIMC § 18.09.030(A)(3) allowing buildings, grazing, and reduction of setbacks/buffers through the use of hedgerows? Those are impermissibly ignored and the implementation is clearly erroneous. Be There is No Code Provision to Retain Trees in a Non - Farmed Buffer Nor "Residual Forest" on the Rich Property There is nothing stating a nonfarm buffer must be native trees. It is simply space between agricultural and nonagricultural properties. It is an actively managed area., as specified in the approved Farm Plan which is the governing document. Christy Carr repeatedly stated she did not look at other sections of the Code in regards to farming when SUPPLEMENTAL BRIEF OF APPELLANTS - 3 of 6 [90373-1] DENN[s D. REYNOLDS LAW OFFICE 200 Winslow Way West, Suite 380 Bainbridge Island, WA 98110 (206) 780 -6777, tel / (206) 780=6865, fax Email: dennis @ddrlaw.com I 2 K ou 5 I 7 0 Z 10 11 12 13 14 15 ITSI 17 19 20 21 22 23 24 prohibiting removal of trees in the non -farm buffer. One section of the Code should not be allowed to completely disregard another section when it comes to land management. If this is the case, then none of the agricultural provisions will ever have any applicability if a VMP is required, because agricultural conversion allows more disturbance than private residential or commercial development. There is no "residual forest," as defined by BIMC 16.22.020U. All of the site (95 %) is harvested, only road side buffers are left. The "windfirm condition" requirement only applies to "residual; forest areas. In this case, the condition to maintain residual forest is not only in direct contradiction with BIMC Chapter 16.22 and Chapter 18.09, it arguably provides less of a buffer than the hedgerow allowed under the more specific requirements applicable to agriculture. Thus, imposition of a condition requiring "residual forest" does not establish the requisite nexus and violates RCW 82.020 Co The City Concedes that Commencement of the Farm Plan Within One Year is Sufficient When Ms. Carr was asked about what stage the farm would be considered implemented, she repeatedly said "NO" after each item was asked — house complete, barn up, fields planted, having chickens, etc. She did not say "yes" to any level of completion. As everyone agreed, a Farm Plan is a living breathing document. Based upon these concessions, the Examiner can rule "implementation" means tart, not complete. D. The City Has No Authority to Require an NPDES Permit As to the question of the NPDES General Land Development NPDES Permit requirement, the City states it is acting under its SEPA substantive authority, so any contention there is a City Code provisions that explicitly requires the General Permit is not SUPPLEMENTAL BRIEF OF APPELLANTS - 4 of 6 [90373 -1] DENNIs D. REYNOLDS LAW OFFICE 200 Winslow Way West, Suite 380 Bainbridge Island, WA 98110 (206) 780-6777, tel / (206) 780=6865, fax Email: dennis@ddriaw.com ddrlaw.com 2 0 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 before the Examiner. The City's decision is derived from erroneous data. The photos clearly show there is no ditching that leads to High School Road or the downstream course to a seasonal stream to Eagle Harbor. No one actually walked the route to prove the ditching exists to allow drainage to reach surface water, except Ms. Rich. She is not a storm water engineer, but can clearly observe whether ditching is present or not. The City was required to impose "erosion control measures" for the approved timber harvest and land development and it did. BIMC § 16.22.060C.2. No one testified that those controls will not work for the activity expected to occur this stammer. The certification requirements mentioned require a fair amount of training for water which will not reach any surface water. Here is a link for the certification class curriculum: http: / /www.ecy.wa.gov/ programs/ wq/ stormwater /CESCL.CourseReg20l7.pdf. Appellants are required to observe, document and take repeated sample for at least EACH rain! III. CONCLUSION For the reasons stated, the Rich appeal should be granted. DATED this I" day of March, 2017. SUPPLEMENTAL BRIEF OF APPELLANTS -5of6 [90373 -❑ ENNIS D. REYNOIS LAW OFFICE By Dennis D. Reynolds, WSBA #04762 Attorneys for Appellants Crystal and Yurie Rich DENNis D. REYNOLDS LAW OFFICE 200 Winslow Way West, Suite 380 Bainbridge Island, WA 98110 (206) 780 -6777, tel / (206) 780 -6865, fax Email: dennis @ddrlaw.com 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 CERTIFICATE OF SERVICE I, the undersigned, hereby certify under penalty of perjury under the laws of the State of Washington, that I am now, and have at all times material hereto been, a resident of the State of Washington, over the age of 18 years, not a party to, nor interested in, the above - entitled action, and competent to be a witness herein. I caused a true and correct copy of the foregoing pleading to be served this date, in the manner indicated, to the parties listed below: James E. Haney, Meghan B. Frazer, WSBA #40768 Ogden Murphy Wallace, PLLC 901 Fifth Avenue, #3500 Seattle, WA 98164 -2008 (206) 447 -7000, tel / (206) 447 -0215, fax ihanev@a,omw.law.com; mfrazer(a omwlaw.com; gzak(a,omwlaw.com Attorneys_jor City orBainbridge Island ❑ Legal Messenger ❑ Hand Delivered ❑ Facsimile ❑ First Class Mail ❑ ExE�ress Mail, Next Day &- /Email DATED at Bainbridge Island, Washington, this 151 day of March, 2017. SUPPLEMENTAL BRIEF OF APPELLANTS - 6 of 6 [90373 -11 Jon Brenner Paralegal DENNIs D. REYNOLDS LAW OFFICE 200 Winslow Way West, Suite 380 Bainbridge Island, WA 98110 (206) 780 -6777, tel / (206) 780-6865, fm Email: dennis@ddrlaw.com