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