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2017-07-31 DECLARATION OF CHRISTY CARR IN SUPPORT OF RESPONSE1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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, Defendant. No. PLN50468 VEG DECLARATION OF CHRISTY CARR IN RESPONSE TO MOTION TO CLARIFY I, CHRISTY CARR, make the following statement based on personal knowledge: 1. I am a senior planner with the City of Bainbridge Island and was the planner assigned to review the vegetation management permit application that is the subject of the appeal decided by the Hearing Examiner herein on March 9, 2017. 2. I am over the age of 18, am competent to testify herein, and have personal knowledge of each and every fact set forth in this Declaration. 3. The Declaration of Crystal Rich dated July 24, 2017 contains a number of inaccuracies that I wish to respond to. First, however, I want to directly address the purpose of Condition 11 imposed by the Director of Planning and Community Development on the vegetation management permit issued to Mr. and Ms. Rich and that was upheld by the Hearing Examiner. t1EH1610797.DOC;1/13023.050016/ ) DECLARATION OF CHRISTY CARR - 1 OGDEN MURPHY WALLACE, P.L.L.C. 901 Fifth Avenue, Suite 3500 Seattle, Washington 98164.2008 Tel: 206.447.7000 /Fax: 206.447.0215 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4. Condition 11 is aimed at ensuring the offsite impact reduction function of the non- farmed buffer by mitigating actual adverse risks to surrounding residential properties from the drainage features installed by the Riches. The condition does not restrict the uses within the non - fanned buffer solely because it is related to agricultural use; in fact, as noted by Ms. Rich, the drainage features will serve both farm and residential uses on the property. The City does not assert that mowing, weeding, and pest control are unique to farming operations, but only that when these requirements are applied a large drainage facility like that proposed for the Rich property, the requirements will have impacts on surrounding properties if the drainage facilities are located where proposed. 5. The drainage features proposed by the Riches include a 3,375 square foot biorentention cell, 600 - square feet of which are proposed to be located in the non - farmed buffer. In addition, the Riches propose to locate over 1000 linear feet of grass -lined Swale within the non - farmed buffer, including three rock check dams. Contrary to the applicant's declaration, not all of these features are adjacent to Quail Hill Road. Approximately 165 feet of grass lined Swale is adjacent to an abutting residential property. 6. The operation and maintenance guidance document referenced in the applicant's drainage plan and Declaration outlines maintenance considerations, standards and procedures, and maintenance frequency estimates for "typical" drainage facilities (1000 square feet of facility, or 1,000 linear feet of facility). Again, the bioretention cell proposed by the Riches is over 3000 square feet in size and there is over 1000 linear feet of grass lined Swale and dams. Required maintenance is on a monthly, quarterly, biennial or annual basis. Maintenance components include the facility footprint, inlets /outlets /pipes (the proposed outlet pipe is 8 -inch diameter), vegetation, mulch, watering, and pest control. Maintenance of the bioretention facilities far exceed that required for a residential lawn or any other type of purely residential use. The majority of this maintenance will occur within the non - farmed buffer and the front yard setback to Quail Hill Road, an area in which, at the time the Riches applied for their vegetation { JEH1610797.DOC;1/13023.050016/1 DECLARATION OF CHRISTY CARR - 2 OGDEN MURPHY WALLACE, P.L.L.0 901 Fifth Avenue, Suite 3500 Seattle, Washington 98164 -2008 Tel: 206.447.7000/Fax: 206.447.0215 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 11 management permit, rain gardens and drainage swales were prohibited by BIMC 18.12.040 II because of their potential adverse impacts on surrounding property. 7. While this maintenance activity is not exclusive to farming activities, the frequency, duration and scale associated with the facilities proposed by the Riches is not typical of any stormwater infrastructure in the surrounding neighborhood. The proposed bioretention cell is three times the size of a "typical" facility and will have ongoing impacts related to noise, odors, nuisance plants and pests and aesthetics. Condition 11 mitigates actual adverse risks to the surrounding residential properties by moving the drainage facilities out of the non - farmed buffer and away from those surrounding properties. 6. Condition 11 is also not overly burdensome on the Riches and will not significantly detract from their intended farm use. The bioretention cell would only need to be shifted eight feet to the north in order to be located entirely outside the non - farmed buffer. 7. Having detailed the reasoning behind Condition 11,1 would now like to respond to several inaccuracies in Ms. Rich's Declaration. First, in paragraph 3 of the Declaration, Ms. Rich states that the City refuses to let go of its position that the non -famed buffer is a "no touch buffer." This is incorrect. The City has not stated or implied that the buffer is a "no touch" buffer and has not challenged the Hearing Examiner's revised Condition 7, which allows hedgerows and other plantings, in any way. The City has only sought to enforce Condition 11, which the Hearing Examiner expressly upheld. 8. The "summary of needed steps" set forth in paragraph 4 of Ms. Rich's Declaration is incomplete. On March 22, 2017, I provided the applicant with a list of items that needed to be addressed prior to the start of any clearing or grading on her property. This list included "a revised drainage plan meeting the requirements of Condition 11 must be submitted for review and approval. The City has consistently and repeatedly advised the applicant of this requirement and Ms. Rich's list conveniently omits Condition 11. {JEH1610797.DOC;1/13023.050016/ } DECLARATION OF CHRISTY CARR - 3 OGDEN MURPHY WALLACE, P.L.L.C. 901 Fifth Avenue, Suite 3500 Seattle, Washington 98164 -2008 Tel: 206.447 7000 /Fax: 206.447.0215 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 9. In response to paragraphs 11, 12, and 13 of Ms. Rich's Declaration, I sent an email to the applicant at the applicant's request on April 17, 2017 showing those portions of the drainage features that needed to be moved out of the non - farmed buffer. I took the drainage plan submitted by the applicant with the original vegetation management permit application and highlighted the features other than the outfall that were located in the non - farmed buffer. At no point did I say that the overflow (outfall) for the bioretention cell could not be located in the buffer. Condition 1 I specifically allows the biorentetion cell outlet to be located in the non - farmed buffer and I have not stated anything to the contrary. 10. In response to Ms. Rich's statement in paragraph 13 of her Declaration that I did not respond to her request for a code reference, I did not provide a reference because what is required is that the drainage plan comply with Condition 11 of the vegetation management permit. While the drainage plan may comply with the specific requirements of the City's stormwater regulations, that is not the issue. The drainage plan does not comply with Condition 11, which the Director imposed and the Hearing Examiner upheld. 11. In response to paragraphs 15 - 17 of Ms. Rich's Declaration, Ms. Rich confuses the responsibilities of the City's Public Works Department with those of the City's Department of Planning and Community Development. Condition 3 of the vegetation management permit clearly states that the Department of Planning and Community Development (not Public Works) must inspect clearing limits fencing/netting: Clearing limits fencing/netting must be installed, inspected and approved by the PCD 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 all property lines of the lot clearly marked and identifiable. 12. In response to paragraph 21 of Ms. Rich's Declaration, the City has made it clear at least seven times between March and July, 2017 that Condition 11 remains a valid part of the (JEH 1610797 DOC;1 / 13023.050016/ ) DECLARATION OF CHRISTY CARR - 4 OGDEN MURPHY WALLACE, P L.L C. 901 Fifth Avenue, Suite 3500 Seattle, Washington 98164 -2008 Tel: 206.447.7000[Fax: 206.447.0215 f) 4 5 6 7 8 9 10 lI 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vegetation management permit and needs to be met. This includes an email to the applicant from the City Manager on June 22, 2017 stating that "Modifying the drainage plan is the option available to move forward with your project. There will be no inspection until the drainage plan is modified and approved." The City has consistently and repeatedly tried to explain the rationale for the City's actions and the applicant simply refuses to listen. 13. In response to paragraphs 24 - 26 of Ms. Rich's Declaration, the applicant continues to conflate the City Development Engineer's approval of the drainage plan and compliance with Condition 11. Including erosion controls as part of the drainage plan is not a substitute for complying with the conditions of approval. The City's Development engineer approved the stormwater plan from an engineering standpoint and not necessarily with regard to the nonfarmed buffer and compliance with Condition 11. 14. In response to paragraph 28 of Ms. Rich's Declaration, a farm plan is no more than a laundry list of "should" for environmentally sustainable farming. While the farm plan written by the Kitsap Conservation District contains a number of boilerplate Natural Resource conservation Service (MRCS) standards, these are simply recommendations from a non- regulatory agency and do not supersede project conditions. The applicant is not so experienced in the implementation of these practice standards or other pasture practices that conditions of approval are not necessary. 15. In response to paragraph 30 of Ms. Rich's Declaration, the City did not request that the applicant hire a second stormwater engineer to review the plan provided by Seabold Engineering. Instead, what the City did was send an email to the applicant on July 6, 2017 providing clarification of the City's expectations for the revised drainage plan meeting the requirements of Condition 11. These expectations included a requirement that the revised drainage plan be stamped by a licensed civil engineer and accompanied by a memorandum from the civil engineer stating that the revised plan is consistent with the Bainbridge Island Municipal Code, including BIMC 15.20. IJEH1610797. DOC; 1/13023.050016/ 1 DECLARATION OF CHRISTY CARR - 5 OGDEN MURPHY WALLACE, P.L.L.C. 901 Fifth Avenue, Suile 3500 Seattle, Washington 98164 -2008 Tel: 206.447.7000/Fax: 206.447.0215 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 16. Condition 11 was a well thought out response to the impacts that the location of a large bioretention cell and grass -lined swale on the Rich property with substantial facilities proposed to be located in the non -famed buffer would have on the properties surrounding the Rich property. While the applicant continues to disagree with the City's imposition of the condition, Condition 11 is justified by the adverse impacts and risks it is intended to mitigate. I respectfully request that the Hearing Examiner deny the Riches' motion to nullify Condition 11. I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct. EXECUTED at Seattle, Washington this 31 st day f July, 2017. Chr ty Carr (JEH 1610797. DOC J /l3023.050016/ ) DECLARATION OF CHRISTY CARR - 6 OGDEN MURPHY WALLACE, P.L.L.C. 901 Fifth Avenue, Suite 3500 Seattle, Washington 98164 -2008 Tel: 206.447.7000/Fax: 206.447.0215