APPELLANT'S PRE-HEARING BRIEF1
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CITY HEARING: APRIL 26, 2017; 9:00 AM
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
PRE-HEARING BRIEF OF APPELLANTS
PAUL AND JENNIFER CLARK
I. INTRODUCTION
This is a case of an applicant asking for, and receiving, technical assistance from City
of Bainbridge Island ( "City" "COBI ") Staff, following all instructions to the best of his
ability, and now facing punitive action — either civil penalties, criminal sanctions, or both.
Yes, the Examiner heard correctly at the Pre - Hearing in this matter when the City Attorney
stated his client city was not interested in pursuing penalties. At Hearing, City off cials will
state Bainbridge Island desires a ruling in its favor, so that penalties can be imposed by
separate action. Just as the story changed during the permitting process, it has changed again.
The City's targeting of a non - professional, average citizen clearing his land only after
checking out the process and obtaining all permits, is clearly erroneous. And now, to make
Paul and Jennifer Clark ( "Clarks ") are the epitome of a new "get tough" policy is beyond
PRE - HEARING BRIEF OF APPELLANTS
PAUL AND JENNIFER CLARK - 1 of 11
[90364 -11
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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clearly erroneous; it is cruel, robbing citizens of their dignity and holding them up to potential
public ridicule as "law- breakers."
II. FACTS
This consolidated appeal is largely about what happened and who said what when. It
has the all too typical Bainbridge Island elements of complaining neighbors wagging the dog,
and City Staff working to cover their actions with little or no regard for the
Applicant/Property owner.
The Property.
Mr. and Ms. Clark own 2.33 acres of property located on Bainbridge Island. They are
developing 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. The Appellants are not developers for profit. They are developing a site
to build a home, live in, and raise their children. It is in their best interest to protect their land
and keep it as natural as possible.
The project site and tax parcel information is. Johnsonville Lane, Bainbridge Island,
Washington, 98110; Tax ID No. 28250220352008. The assigned zoning is R44. The site
does not show the presence of any critical areas on the City Critical Areas Map.
The Applications and
;nt Work.
Mr. and Ms. Clark purchased 2.33 acres of land in January 2016, and began
development by first obtaining a clearing permit from the City of Bainbridge Island in
February that year. Mr. Clark was told by former 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
PRE - HEARING BRIEF OF APPELLANTS
PAUL AND JENNIFER CLARK - 2 of 11
[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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about 11,000 square feet. Mr. Clark went ahead and marked the trees to be cleared, and went
back to Mr. Schildmeyer for his 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.
After the first site inspection, City Staff urged Mr. Clark to secure a vegetation
management approval for additional clearing. 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 he 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 he wanted removed, 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.
PRE - HEARING BRIEF OF APPELLANTS
PAUL AND JENNIFER CLARK - 3 of 11
[90364 -11
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbrid a Island, WA 98110
(206) 780M777
(206) 780 =6865 (Facsimile)
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City employee Ms. Janelle Hitch worked with Mr. and Ms. Clark to establish silt
fences and stormwater controls for the approved excavation and related grade and fill work.
In addition to silt fencing, proper Best Management Practices control methods were
employed, including spreading grass seed on the affected areas with slope and spreading a
straw covering on any affected areas that required stabilization or protection from the
elements.
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 Beckmann
Wright, 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.
The Revocation
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
PR&HEARING BRIEF OF APPELLANTS
PAUL AND JENNIFER CLARK - 4 of 11
[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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costs to replant. This came as a huge shock to Mr. Clark since he had done everything the
City asked of him over the previous six months. 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
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.
On October 8, 2016, the City revoked the Vegetation Management Permit, stating in
relevant part,
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 Office for enforcement under BIMC.
See, e.g., BIMC 1.26 and 16.22.097.
Decision, October 6, 2016. This timely appeal followed.
The Director's Review.
The October 13, 2016, Warning of Violation and Order to Correct is premised upon
"revocation" of Permit No. PLN50467 VEG. Thus, the facts and argument on the revocation
intertwine with the City's Code Enforcement Action,
The Warning and Order states: ... you must bring your property into compliance.
Once the property is brought into compliance, you must maintain the property to be in
PRE-HEARING BRIEF OF APPELLANTS
PAUL AND JENNIFER CLARK - 5 of 11
[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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compliance with City Codes." Absolutely no direction was provided as to what is expected of
the Clarks in order to bring their property "into compliance." Appellants honored the Warning
of Violation and Order to Correct and associated Stop Work Order.
On October 19, 2016, the Clarks filed a timely request for Director's review
pursuant to BIMC § 1.26.070 and § 1.26.050. The Director decided to handle the Clarks'
request for review even though he had participated in the events leading to the City's
enforcement actions. In an Administrative Decision dated December 12, 2016, the Director
upheld the Staff's Code Enforcement Action. The Decision states in relevant part as
follows:
After considering all of the information and materials submitted
by the applicant and the record as part of the Request for
Director's Review, I am herby sustaining the Warning of
Violation & Order to Correct and associated Stop Work Order
issued October 13, 20160
Decision, December 12, 2016, p.2.
III. ARGUMENT
The Examiner is presented the question of how City's actions should be assessed in
terms of deference. This matter is fundamentally a Code Enforcement case, with Mr. and
Mrs. Clark at risk of civil and criminal penalties. Thus, the context of this matter is punitive.
In such circumstances the laws and facts are constructed in favor of the Clarks. See, e.g., Post
v. City of Tacoma, 167 Wn.2d 300, 217 P.3d 1179 (2009) (city had the burden of proof to
justify infraction penalties administratively imposed by the city under its building code).
The Examiner will also have to decide a question of policy. The GOBI states it
enforcement policy is remedial, not punitive. However, it is anticipated that the facts will
PRE - HEARING BRIEF OF APPELLANTS
PAUL AND JENNIFER CLARK - 6 of 11
[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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show City Staff refused to work with the Clark's on a voluntary remediation plan, including
proving them technical assistance. Cooperation could have avoided a hearing in this matter.
Also, question of fairness and procedural due process are before the Examiner. See
Valley View Indus. Park v. City of Redmond, 107 Wn.2d 621, 636, 733 P.2d 182 (1987)
(developers must be able to be able to take recognized action under fixed rules governing the
development of their land); Norco Constr., Inc. v. King County, 97 Wn.2d 680, 684 -685, 649
P.2d 103 (1982) (due process requires that applicants be treated in a fundamentally fair
manner); West Main Assocs. v. City of Bellevue, supra, 106 Wn.2d at 50 (due process requires
the City to apply and enforce its laws as written without adding new criteria on a case -by -case
basis); see also Sleasman v. Lacey, 159 Wn.2d 639, 643, 151 P.3d 990 (2007) (no deference
to City "interpretation" of unambiguous ordinance where claimed definition was a by- product
of current litigation and not established practice of enforcement).
A. Revocation of the Vegetation Management Approval
Conditions (2) and (4) of the Vegetation Management Permit state:
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 B" of staff
report.
4. Total of clearing under this approval shall not exceed 20,000 square feet of area.
Notice of Administrative Decision and Mitigated Determination of Nonsignificance (MDNS),
dated July 13, 20166
The facts show that pursuant to his Vegetation Management Plan Permit, Mr. Clark
did not exceed the 20,000 - square foot limit (Condition No. 4). The site plan was an
approximation only, which was substantially complied with in all material respects, as Staff
directed. Mr. Clark "cleared" approximately 17,000 square feet pursuant to the Vegetation
PRE - HEARING BRIEF OF APPELLANTS
PAUL AND JENNIFER CLARK - 7 of 11
[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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Management Plan Permit and approximately 17,000 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. The total site disturbance is approximately 28,000 square feet.'
The City has not alleged that the Clearing Permit 5,000 square foot limit on clearing
was exceeded. Thus, only the Vegetation Management Plan Permit limit (20,000 square feet)
is in play, which was not exceeded. The doctrine of finality prevents the City from taking
away that which it originally authorized. E.g., Wenatchee Sportsmen Assn v. Chelan County,
141 Wn.2d 169, 182, 4 P.3d 123 (2000); Habitat Watch v. Skagit County, 155 Wn.2d 397,
410 -11 120 P.3d 56 (2005) (holding that previously unchallenged final land use decisi
, ons
cannot be collaterally attacked).
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 includes what was
separately allowed by the clearing permit. This premise is legal error. Specifically, the
permit approvals are separate and distinct. The Clearing Permit allowed for clearing 5,000
board feet of timber, and the Vegetation Management Approval allowed clearing up to 20,000
square feet of area. As noted, COBI designed the area to be logged pursuant to the Clearing
Permit. An approval is an approval, which includes instructions issued by Staff. In this
regard, the Examiner has authority to decide questions of permission, if not estoppel. If the
Examiner decides he has jurisdiction over the doctrine of estoppel, all elements are met in this
instance.
The City Code imposes a total site tree unit requirements (BIMC § 18.15.010.2) which have not been exceeded.
PRE - HEARING BRIEF OF APPELLANTS
PAUL AND JENNIFER CLARK - 8 of 11
[90364-1]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 78p 6777
(206) 780 -6865 (Facsimile)
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The COBI issued the Clarks a building permit (BLD21401 SFP). That permit allows
the basement excavation and related grade and fill work, so is outside any prescribed permit
or Code clearing limit. That area is approximately 5,000 square feet.
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Be Decision on Director's Review (Warning of Violation, Order to Correct, and Stop
Work Order)
No apparent consideration was given to the Clarks' appeal of the permit revocation.
The enforcement action did not consider the prior directives and guidance provided by City
employees, or the City's affirmative obligations to provide technical assistance.
The Clark property is approximately 101,930 square feet. During the Director's
Review process, Mr. Clark went out and physically took measurements of the areas that were
disturbed but not cleared, and determined that area to be 13,580 square feet. He then
subtracted that figure from the City's figure of 33,278 square feet "cleared," which leaves a
total cleared area of 19,698 square feet, which is under 20 percent of the property. These
calculations were provided to the Director.
There is a distinction between "cleared" and "disturbed." See, e.g., BIMC
§ 16.18.020, Definitions. "Clearing" means the destruction and removal of vegetation by
mechanical or other means. "Disturbing" means moving dirt or effectuating a change in the
soil cover and/or the existing soil topography. In this matter, what occurred on a substantial
portion of the site is placing clean dirt from the basement excavation for the proposed home in
varying depths over existing vegetation. It is expected the vegetation will grow through or
new vegetation take hold in the disturbed areas. That is "disturbance," not "clearing."
PRE - HEARING BRIEF OF APPELLANTS
PAUL AND JENNIFER CLARK - 9 of 11
[90364-1 ]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbrid$ a Island, WA 98110
(206) 780 6777
(206) 780 -6865 (Facsimile)
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Approval was sought to remove trees and stumps to develop the Clark property for a
single family residential use. The Vegetation Management Permit Application speaks in
terms of tree removal and harvest. The City Code, § 16.22.060.A.1, uses the term "cut," that
is, trees which are cut or harvested. In the R -.04 Zone, the allowable percent of area is 20
percent. Disturbance is not regulated by the VMP.
IV. CONCLUSION
The appeal should be granted.
DATED this 19a' day of April, 2017.
1111 D
. . REYNO LAW OFFICE
By ✓ -�
Dennis D. Reynolds, WSBA #04762
Attorneys for Appellants Paul and Jennifer Clark
PRE - HEARING BRIEF OF APPELLANTS
PAUL AND JENNIFER CLARK - 10 of 11
[90364 -11
DENN]s D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge lsland, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
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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:
E. Haney. WSBA #11058
Ogden Murphy Wallace PLLC
901 Fifth Avenue, #3500
Seattle, WA 98164 -2008
(206) 447-7000, tel / (206) 447-0215, fax
ihaney@omwlaw.com, email
Attorney for City of Bainbridge Island
❑ Legal Messenger
❑ Hand Delivered
❑ Facsimile
❑ First Class Mail
❑ EE ress Mail, Next Day
'Email
DATED at Bainbridge Island, Washington, this 19a' day of April, 2017.
PRE- HEARING BRIEF OF APPELLANTS
PAUL AND JENNIFER CLARK - 11 of 11
[90364 -11
Zoe, elw
Jon Wermer
Paralegal
DENNiS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)