ORDER ON HEARING STATUSMay 2, 2017
CITY OF BAINBRIDGE ISLAND, WASHINGTON
HEARING EXAMINER
ORDER ON HEARING STATUS
Proceeding:Clark Administrative Appeals
File number:PLN50467VEG
Appellant:Paul and Jennifer Clark, represented by
Dennis D. Reynolds, Attorney
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
Location:Tax parcel no. 282502-2-035-2008
1.Paul and Jennifer Clark appealed two related City decisions affecting tax parcel no. 282502-2-
035-2008, a 2.34 acre lot where the Clarks plan to build a single-family residence. The first appeal
challenged the City's revocation on October 6, 2016, of a vegetation management permit (VMP) issued
July 13, 2016. The second appeal challenged the Planning Director's December 12, 2016, decision
documenting his denial of the Clarks' appeal of a warning of violation, order to correct and stop work
order (collectively, the SWO) issued soon after revocation of the VMP.
2.Because the two appeals both arose out of a single complex of activities surrounding the Clarks'
clearing of tax parcel no. 282502-2-035-2008 with key issues substantially overlapping, the parties
agreed that the two appeals should be consolidated into single hearing proceeding. A prehearing
conference on the consolidated appeals was held by the Hearing Examiner on March 15, 2017, and a
prehearing order was issued on March 20, 2017. The appeal hearing was set for April 26, 2017.
3.The public hearing opened on April 26, 2017, as scheduled, at which time the Examiner offered
his opinion that the SWO appeal was not in fact subject to hearing examiner jurisdiction. Such
jurisdiction was predicated on a generous reading of a vague and generic note appearing within the
BIMC Table 2.16.010-1 “Summary of Land Use Procedures”. While reliance on this note may be
justified in the absence of a more specific provision, BIMC Chapter 1.26 in fact deals in considerable
detail with the entire City code compliance process, including infraction notices, violation notices, stop
work orders and penalties – none of which are subject to appeal to the Hearing Examiner. The parties
accepted the Examiner's proposal that the SWO appeal should be dismissed from the instant
proceeding, although the appellants' agreement appeared to be based more on considerations of
mootness than an absence of jurisdiction.
4.At the end of appellant Paul Clark's direct testimony the Examiner engaged the parties in a
discussion of settlement options, expressing the opinion that settlement appeared to offer to everyone
the best available outcome. The parties agreed to renew settlement negotiations. But they preferred to
complete the hearing process first in order to avoid having to return to finish a continued hearing if the
settlement negotiations were to fail. On that basis, further hearing testimony and entry of exhibits went
forward, and the evidentiary process was completed on April 26, 2017, at which time the record closed.
The Examiner took the case under advisement pending receipt of notification from the parties regarding
the results of the settlement negotiation process.
ORDER:
A.The appeal challenging the Planning Director's December 12, 2016, decision
documenting his denial of the Clarks' appeal of a warning of violation, order to correct and stop
work order (collectively, the SWO) is DISMISSED.
B.The VMP appeal has been submitted under advisement. The appellants and the City shall
undertake to reach settlement regarding the matters at issue within the VMP appeal, with the
City filing a progress report on such efforts with the Hearing Examiner's office by June 30,
2017.
C.If the parties successfully settle the VMP appeal, a copy of the settlement agreement
shall be filed with the Hearing Examiner's office. This proceeding shall then be dismissed
consistent with the terms of the settlement agreement. Or if the parties have agreed in writing
to further extend the negotiation process to a date certain, an order will be issued effecting this
extension agreement.
D.If by the June 30, 2017, deadline the parties have failed to either settle or agree to extend
negotiations, the Examiner will proceed to issue an appeal decision based on the record
established at the public hearing.
ORDERED May 2, 2017.
___________________________________
Stafford L. Smith, Hearing Examiner
City of Bainbridge Island