APPEAL ADMIN DECISION RE VEG MANAGEMENT1
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BEFORE THE CITY OF BAINBRIDGE ISLAND
OFFICE OF HEARING EXAMINER
PAUL and JENNIFER CLARK,
Appellants,
V.
CITY OF BAINBRIDGE ISLAND, acting
through its Department of Planning and
Community Development,
No. PLN50467 VEG
APPEAL OF ADMINISTRATIVE
DECISION REVOKING VEGETATION
MANAGEMENT PLAN
Paul and Jennifer Clark, Appellants herein, pursuant to City of Bainbridge Island
Municipal Code ( "BIMC ") § 2.16.020(P)(1)(a), BIMC § 2.16.020(C)(2), and BIMC
§ 2.16.0 10 (Table 2.16.010 -1) (Vegetation Management), hereby appeal to the Bainbridge
Island Office of Hearing Examiner that certain administrative decision dated October 6, 2016
(the "Decision "), issued by the Director of the City of Bainbridge Island Department of
Planning and Community Development ( "the City "), Mr. Gary R. Christensen. The Decision
revokes Vegetation Management Permit PLN50467 VEG. Appellants' work pursuant to the
permits issued by the City is complete. However, the Decision opines that there are actions
on their part which establish grounds to file a Code Enforcement Action. Appellants strongly
disagree. Thus, they file this protective appeal to preserve their arguments and contention that
they have violated no law or permit condition as to the clearing of their land.
APPEAL OF ADMINISTRATIVE DECISION - 1 of 10 200 Winslow sl w Way West, S OFFICE
200 Winslow Way West, Suite 380
[90364 -1] Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
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I. NAME AND IDENTITY OF APPELLANTS
AND BASIS FOR STANDING
1.0 Paul and Jennifer Clark. Their current address is: 9809 NE Lafayette Avenue,
Bainbridge Island, Washington, 98110, telephone: (206) 962 -0555. Mr. and Mrs. Clark own
the property subject to the clearing and the City's Administrative Decision.
1.1 Appellants' legal representative in this matter is the Dennis D. Reynolds Law
Office, 200 Winslow Way West, Suite 380, Bainbridge Island, Washington 98110; telephone:
(206) 780 -6777; fax: (206) 780 -6865.
1.2 Appellants are aggrieved parties with standing to seek review and contest the
Decision because their property is the subject of the City's Permit Revocation and they are
holders of the Permit Approval. Appellants are prejudiced or likely to be prejudiced by the
City's actions specified below if no relief is granted. A ruling in favor of Appellants will
substantially eliminate or redress the prejudice that the Decision has caused, or likely will
cause them, for which review and relief is requested.
II. NAME AND IDENTITY OF RESPONDENT
2.0 The City of Bainbridge Island, Department of Planning and Community
Development, 280 Madison Avenue North, Bainbridge Island, Washington, 98110, telephone:
(206) 842 -2545.
III. DECISION APPEALED
3.0 Appellants appeal the Administrative Decision dated October 8, 2016. A true
and accurate copy of the Decision is annexed hereto as Exhibit 1, by reference made part of
this Appeal. The Decision states in relevant part as follows:
City staff have made several site visits to the property and finds
that you are in violation of the conditions listed on the Notice of
Administrative Decision for permit PLN50467 VEG,
APPEAL OF ADMINISTRATIVE DECISION - 2 of 10 200 Winslow sl w Way DS West, S OFFICE
200 Winslow Way West, Suite 380
[90364 -1] Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
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specifically Conditions Number 2 and 4 (copy of the
Administrative Decision enclosed). As of the date of this letter,
your vegetation management permit has been revoked under
BIMC 16.22.097(A) (Permit Revocation) and your case referred
to the Code Compliance Office for enforcement under BIMC.
See, e.g., BIMC 1.26 and 16.22.097.
Decision, October 6, 2016.
3.1 The Decision is in error for the reasons set out below.
IV. STATEMENT OF RELEVANT FACTS IN SUPPORT OF
GROUNDS FOR APPEAL
4.0 Mr. and Mrs. Clark own 2.33 acres of property located on Bainbridge Island.
They intend to develop their property with a single - family home, drainfield, well, access road,
and appurtenant structures. The work includes removing trees and stumps to create a build
site for the proposed home.
4.1 The project site and tax parcel information is: Johnsonville Lane, Tax ID
No. 28250220352008. The assigned zoning is R -0.4. The site does not show the presence of
any critical areas on the City Critical Areas Map.
4.2 The Appellants are not developers for profit. They are developing a site to live
on, build a home, and raise their children. It is in their best interest to protect their land and
keep it as natural as possible.
4.3 They purchased 2.33 acres of land in January of 2016 and began development
by first obtaining a clearing permit from the City of Bainbridge Island in February. Mr. Clark
was told by City employee Nate Schildmeyer that the Clearing Permit would limit him to
5,000 board feet of timber and that he would have to designate the trees to be taken down.
This turned out to be about ten trees covering an area of about 11,000 square feet. Mr. Clark
went ahead and marked the trees to be cleared and went back to Mr. Schildmeyer for his
DENNIs D. REYNOLDS LAW OFFICE
APPEAL OF ADMINISTRATIVE DECISION - 3 of 10 200 Winslow Way West, suite 380
[90364 -1] Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
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approval. It took a few days, but Mr. Schildmeyer came back later that week and approved
the trees that Mr. Clark had designated within the approximate 11,000 square foot
development area. After Mr. Clark had cleared the designated area, Mr. Schildmeyer and
another City employee, Janelle Hitch, came out to inspect the property due to a complaint by
a neighbor that Mr. Clark was building on a "salmon stream." These employees verified there
was no stream and also noted the trees that were removed. The neighbor began complaining
as soon as Mr. Clark began clearing by calling him on his cell phone and demanding that he
come over to her property to see how the view from her deck of the forest was "changing."
Two weeks later she came out and told Mr. Clark he was getting "very close" to her property
and so, as a courtesy to her, Mr. Clark told her he would not remove any of the trees that she
thought were hers.
4.4 After the first site inspection, City Staff urged Mr. Clark to secure a vegetation
management approval for additional clearing. It was not until April 2016 that Mr. Clark was
issued approval for a vegetation management permit, which he then used to obtain his forest
practices permit in person from the Department of Natural Resources office in Greenwater. A
true and accurate copy of the Vegetation Management Plan Permit is annexed hereto as
Exhibit 2, by reference made part of this request.
4.5 As part of the Vegetation Management Plan Permit, Mr. Clark noted the trees
that needed to be removed for his home and backyard for his family on the site plan. For this
permit, he was told there was a 20,000 square foot limit of additional cutting and site
disturbance. Mr. Clark was told by Mr. Schildmeyer (who was told by City Employee Josh
Machen) that Mr. Clark needed to actually physically mark the trees on the property that he
wanted to remove. So, Mr. Clark purchased some pink duct tape and flagged all the trees that
DENNIS D. REYNOLDS LAW OFFICE
APPEAL OF ADMINISTRATIVE DECISION - 4 of 10 200 Winslow Way West, suite 380
[90364 -1] Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
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he wanted to remove, making sure he stayed under the allotted 20,000 square foot limit.
Mr. Schildmeyer then came out and approved the trees to be logged and the area to be cleared;
Mr. Clark then proceeded to log and clear.
4.6 When the clearing was finalized, this neighbor went down to City Hall to
complain that Mr. Clark had removed too many trees. He received a call from Heather at
Planning the next day and told her he would take time off work to come down and meet with
her. She brought Mr. Christensen with her to the meeting, and he came with a 300 -foot tape
measure. They proceeded to measure the cleared area and concluded that it was under what
had originally been proposed to clear. Apparently this decision was not good enough for the
neighbor, who then went to the City Manager to complain. Josh Machen then came out and
took rough measurements of the entire property, including what was cleared with the clearing
permit. He determined that Mr. Clark had cleared "more than" 20,000 square feet, apparently
thinking that the 20,000 square feet allowed in the clearing permit included the 11,000 square
feet allowed in the Vegetation Management Plan Permit, even though the two approvals were
separate and distinct, and the cutting and clearing pursuant to each permit was first separately
approved by the City.
4.7 On October 7, 2016, Mr. Clark was told by Mr. Christensen (who originally
told him that the clearing he had done was under the 20,000 limit) that his vegetation
management permit was being revoked and that he would be facing a moratorium along with
fines and costs to replant. This came as a huge shock to Mr. Clark since, for the prior six
months, he had done everything the City asked of him. Indeed, City employees had even
come out multiple times and assured him that he had not cleared too much. So on October 12,
2016, Mr. Clark went in to meet with Josh Machen to see if there had been some sort of
APPEAL OF ADMINISTRATIVE DECISION - 5 of 10 200 Winslow sl REYNOLDS West, S OFFICE
200 Winslow Way West, Suite 380
[90364 -1] Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
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misunderstanding. Mr. Machen told Mr. Clark that the area to be cleared on the site plan did
not look like the area that had actually been cleared, and thus, Mr. Clark had "violated" the
Vegetation Management Plan Permit. Mr. Clark then asked Mr. Machen if the area to be
cleared by the Vegetation Management Plan Permit somehow included that allowed in the
clearing permit. His only answer was that this issue was out of his hands.
4.8 At Hearing, the facts will show that pursuant to his Vegetation Management
Plan Permit, Mr. Clark did not exceed the 20,000 square foot limit. The site plan was an
approximation only, which was substantially complied with in all material respects.
Mr. Clark cleared approximately 17,000 square feet pursuant to the Vegetation Management
Plan Permit and approximately 11,000 square feet under the clearing permit. The only area
actually graded is where the home is located; the remainder of the lot was disturbed, but not
graded.
4.9 The City Code provides total site tree unit requirements (BIMC § 18.15.010.2)
which have not been exceeded. Maximum lot coverage requirements are not in play and will
not be exceeded by Mr. and Mrs. Clark. The City's Vegetation Management laws, BIMC
Chapter 16.22, exempt the Clark's activities because no further sub - division of the property is
possible and the parcel is more than two acres in size. See BIMC§ 16.220.030; .040. The
property is not zoned or designated for forest use. Even if not exempt(which is not the case)
the actual land clearing does not appear to exceed 20% of the Appellants' ownership applying
the yearly 2500 square feet exemption..
V. SUMMARY OF GROUNDS FOR APPEAL
5.0 Appellants reallege their allegations set out in Sections I — IV of the appeal.
5.1 For the reasons set out herein, the City's Decision is clearly erroneous.
APPEAL OF ADMINISTRATIVE DECISION - 6 of 10 200 Winslow sl REYNOLDS West, S ite 380 OFFICE
200 Winslow Way West, Suite 380
[90364 -11 Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
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Statement of Factual Errors
5.2 The Decision is in error in finding that Appellants are in violation of any
material term or condition of Permit No. PLN50467 VEG as interpreted and applied by City
Staff.
5.3 The Decision is in error to the extent it "finds" that any limitation on the
extent of allowed clearing set out in Permit No. PLN50467 VEG, including a 20,000 square
foot limit, or other City approval or directive was violated.
5.4 The Decision is in error to the extent it finds that all City directives to
Appellants set out in Permit No. PLN50467 VEG or during site visits /inspections were not
followed.
Stakempent of'Legal Errors
5.5 The Decision is based upon the premise that the City's approval as to the
allowed extent of clearing set out in the Vegetation Management Plan Permit illcludes what
was separately al lowed by the clearing permit. This premise is legal error.
5.6 It is legal error for the City to determine that the 20,000 square foot maximum
clearing set out in Permit No. PLN50467 VEG has been exceeded.
5.7 The City has illegally allowed a complaining neighbor to interfere with the
Clarks' development.
5.8 The Decision is in error because it conflicts with City Code provisions as to
tree retention and allowed clearing set out above in Paragraph 4.9, above.
5.9 The Decision is in error under the doctrines of sustained compliance, estoppel,
or permission, among others.
APPEAL OF ADMINISTRATIVE DECISION - 7 of 10
[90364 -1]
DENNIs D. REYNOLDs LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
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5.10 There is a fundamental right to own and reasonably develop real property free
of arbitrary governmental actions, including enforcement of the law without basis in law or
fact. See, e.g., Carpinteria Valley Farms v. County of Santa Barbara, 334 F.3d 796 (Ninth
Circuit, 2003).
5.11 The right to build on one's property is a fundamental attribute of property
ownership and exists without regard to zoning laws, which operate as restrictions on the use
of property. Nollan v. California Coastal Commission, 483 U.S. 825, 833 n.2, 107 S. Ct.
3141, 97 L. Ed.2d 677 (1987) (the "right to build on one's own property — even though its
exercise can be subjected to legitimate permitting requirements — cannot remotely be
described as a `governmental benefit. "'); River Park v. City of Highland Park, 23 F.3d 164,
166 (7th Cir. 1994) ( "An owner may build on its land; that is an ordinary element of a
property interest. Zoning classifications are not the measure of the property interest but are
legal restrictions on the use of property. "); see also Palazzolo v. Rhode Island, 533 U.S. 606,
627 (200 1) (explaining that government cannot extinguish a person's rights in his or her
property by regulation).
5.12 Although government may restrict an owner's property rights through
regulation (in this case, reasonably regulating clearing and tree removal), the regulatory
process does not negate the very existence of those rights — a person's property rights exist
regardless of the regulatory restrictions that burden those rights. See Nectow v. Cambridge,
277 U.S. 183, 187,48 S. Ct. 447, 72 L Ed. 842 (1928); Euclid v. Ambler Realty Co., 272 U.S.
365, 384, 47 S. Ct. 114, 71 L. Ed. 303 (1926). A property owner who submits a land use
application is not requesting a government- created benefit; he or she is following the procedures
required to exercise the right to make use of private property. Nollan, 483 U.S. at 833 n.2. The
APPEAL OF ADMINISTRATIVE DECISION - 8 of 10 200 Winslow sl REYNOLDS West, S OFFICE
200 Winslow Way West, Suite 380
[90364 -1] Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
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City's unreasonable permit revocation violates Appellants' protected rights to development
for property for a permitted residential use.
5.13 In Washington, the Growth Management Act (GMA) requires that
governments plan their growth, while also protecting the private property rights of
individuals: "Private property shall not be taken for public use without just compensation
having been made. The property rights of landowners shall be protected from arbitrary and
discriminatory actions." RCW 36.70A.020(6). The City's partial denial is arbitrary as set
out herein.
5.14 The GMA, RCW 36.70A.020(7), provides that: "... applications for ... local
government permits should be processed in a ... fair manner to preserve predictability." The
revocation decision in question was not processed or made in a fair manner.
5.15 The Decision violates Appellants' constitutional rights, including their right to
substantive and /or procedural due process, equal protection, and the right to be free from
arbitrary or discriminatory application and enforcement of promulgated laws.
VI. APPEAL FEE
6.0 The $530 appeal fee is tendered with this appeal.
VII. CONSOLIDATION WITH FUTURE APPEAL
7.0 On October 13, 2016, the City issued Appellants a "Warning of Violation &
Order to Correct" and Stop Work Order signed by Code Compliance Officer Greg Vause, sent
to Clarks via U.S. Mail, and received on October 18, 2016. Appellants will file a request for
Director's Review of the City's referenced Code Enforcement and reserve the right to
consolidate this appeal with any future appeal.
APPEAL OF ADMINISTRATIVE DECISION - 9 of 10
[90364 -1]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
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C
VIII. RELIEF REQUESTED
Appellants request that the Office of Hearing Examiner, upon review:
8.0 Reverse and vacate the Decision and remand with instructions to the City that
it vacate its revocation decision.
8.1 Grant any other further relief that is just and fair under the circumstances.
DATED this 201h day of October, 2016.
DE S D. RE'YNO S LAW OFFICE
By
Dennis D. Reynolds, WSBA #04762
Attorneys for Appellants Paul and Jennifer Clark
APPEAL OF ADMINISTRATIVE DECISION - 10 of 10
[90364 -1]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
CLARK: Appeal of Administrative Decision
EXHIBIT 1
-TMCITY OF
BAINBRIDGE
ISLAND
October 6, 2016
Paul and Jennifer Clark
9809 NE Lafayette Ave
Bainbridge Island, WA 98110
RE: Vegetation Management Permit PLN50467 VEG
Dear Mr. and Mrs. Clark,
The City has received multiple complaints referencing the total amount of clearing on your property
located off Johnsonville Lane (parcel number 28250220352008). On March 9, 2016, you applied for
a vegetation management permit under BIMC 16.22.030, and on July 13, 2016, the Department of
Planning and Community Development issued you permit PLN50467 VEG.
City staff have made several site visits to the property and finds that you are in violation of the
conditions listed on the Notice of Administrative Decision for permit PLN50467 VEG, specifically
Conditions Number 2 and 4 (copy of the Administrative Decision enclosed). As of the date of this
letter, your vegetation management permit has been revoked under BIMC 16.22.097(A) (Permit
Revocation) and your case referred to the Code Compliance Officer for enforcement under BIMC.
See, e.g., BIMC 1.26 and 16.22.097.
The permit revocation decision may be appealed by filing a written appeal and paying a $530.00
filing fee to the City Clerk at 280 Madison Avenue North, Bainbridge Island, WA 98110, in
accordance with the procedures set forth in Bainbridge Island Municipal Code, Section 2.16.020(P).
An appeal must be filed no later than 4:00 p.m., Friday, October 21, 2016.
If you have questions, you may contact me at the below address.
Si 7cerely,
Cary R.,C ristensen, AICP
Dir,.-ctor, Planning and Community Development
F,,,.,iosure
"i , -ring and Community Development
Madison Avenue North
*. -- wibddge Island, Washington 98110 -1812
• 4yJhalnb id eWa. ov
",,.76.842.7633
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CLARK: Appeal of Administrative Decision
EXHIBIT 2
NOTICE OF ADMINISTRATIVE DECISION and
MITIGATED DETERMINATION OF NONSIGNIFICANCE (MDNS)
The City of Bainbridge Island has made a decision concerning the following land use application:
Date of Issuance: July 13, 2016
Project Name & Number: CLARK, PAUL VEG PLN50467 VEG
Project Type: Vegetation Management Plan
Owner: JENNIFER and PAUL CLARK
Project Site & Tax Parcel: Johnsonville Lane, TA# 28250220352008
Project Description:
Remove trees and stumps to create a building site for the house, well and
yard.
Permit Decision:
The application is approved. The staff report, containing the statement of
facts upon which the decision, including conditions, is based and the
conclusions of law derived from those facts, is available to the public upon
request. The decision becomes effective after 14 days from the date of
issuance, or after Wednesday, July 27, 2016
SEPA Determination:
The City of Bainbridge Island (lead agency) has determined that the proposal
does not have a probable significant impact on the environment if mitigation
measures are properly implemented. An environmental impact statement
(EIS) is not required under RCW 43.21C.030(2xc). This determination was
made after review of a completed environmental checklist and other
information on file with the lead agency. This information is available to the
public upon request.
Responsible Official:
Gary Christensen, AICP, Planning Director
City of Bainbridge Island
Address:
Department of Planning and Community Development
280 Madison Avenue North
Bainbridge Island, WA 981 ( 06) 842 - 2552
II
Signature: e: 1
Appeal Procedure:
This administrative decision and/or SEPA determination may be appealed by
filing a written appeal and paying a $530.00 filing fee to the City Clerk at
280 Madison Avenue North, Bainbridge Island, WA 98110, in accordance
with the procedures set forth in the Bainbridge Island Municipal Code,
Section 2.16.020P and/or 16.04.170. An appeal must be filed no later than
4:00 p.m., Wednesday, July 27, 2016. You should be prepared to make
specific factual objections.
Mitigation Measures for This threshold determination is for file number PLN50467 VEG. A
Determination: threshold determination under the State Environmental Policy Act in no way
allows construction work to commence without appropriate construction
permits, such as a building or grading permit. Mitigation measures become
conditions of approval for the permit.
Conditions of Approval are listed on the following page(s):
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If you have any questions, contact:
Nathan Schildmeyer
City of Bainbridge Island
Department of Planning & Community Development
280 Madison Avenue North
Bainbridge Island, WA 98110
206 - 780 -3760 or nschildmeyer@bainbridgewa.gov
Conditions of Approval:
1. A separate building permit will be required for the construction of any structures, buildings,
roadways, driveways or utilities on this site.
2. This approval extends to the clearing of vegetation within the "Revised Garden Area," "Haul
Route," and homesite area represented on the revised site plan submitted and date stamped July
12, 2016 (included as "Attachment 13" of staff report).
3. All significant trees in the area of the on -site sewer (OSS) system drainfield shall be retained.
4. Total of clearing under this approval shall not exceed 20,000 square feet of area.
5. A class IV forest practices permit from the Washington State Department of Natural Resources is
required to begin the work authorized by this permit. The applicant shall receive this approval
prior to commencing any clearing activities, and shall provide copies of this approval to the
Planning and Community Development (PCD) Department.
6. Clearing limits fencing must be installed, inspecte3d, and approved by the PCD Department as
shown on the site plan submitted July 12, 2016 as part of this application prior to any vegetation
disturbance on the site, in order to verify compliance with the conditions of approval and
conformity with the standards of BIMC 16.22. At the time of the clearing limits inspection, the
applicant shall have the property boundary lines on the north and west of the lot clearly and
accurately marked and identifiable.
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PAY TO THE
ORDER OF
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200 Winslow Way . Suite 380 n�nlsRla 34 27ANO. WA esi,a
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Bainbridge Island, WA 0$110
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City of Bainbridge Island
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DOLLARS
City of Bainbridge Island
280 Madison Avenue
Bainbridge Island, WA 58110
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Dennis D. Reynolds Law Office 4358
10/20/2016 City of Bainbridge Island
COBI appeal filing fee (Appeal of Administrative Deci: 530.00
Columbia Bank - Checking 530.00
SET 17 CPI
CITY OF BAINBRIDGE ISLAND FIN
MISCELLANEOUS CASH RECEIPTS
hate / Time : 10/20/16 15:12
Payment : $ 530.00
Receipt : 553495
Check /Credit Card 0: 4358
Clerk : llant
Paid By : DENNIS REYNOLhS LAID