2017-08-08 RICH - ORDER DISMISSING MOTION TO CLARIFYAugust 8, 2017
CITY OF BAINBRIDGE ISLAND, WASHINGTON
HEARING EXAMINER
ORDER DISMISSING REQUEST TO REOPEN VEGETATION MANAGEMENT APPEAL
FOR CLARIFICATION
Proceeding: Rich Vegetation Management and SEPA Appeals
File number: PLN50468
Appellants: Crystal and Yurie Rich
Location: 8236 Sands Avenue; tax lot no. 222502 -3- 013 -2008
1. On March 9, 2017, the Hearing Examiner issued a decision on the Riches' appeal of a
vegetation management permit (VMP) issued to them by the City. The applicants had filed a timely
appeal of a SEPA requirement (condition no. 1) and three project conditions (nos. 7, 12 and 13). The
Examiner's decision denied the appeal with respect to the SEPA condition but granted it regarding the
three project conditions, which accordingly were revised. No appeals were filed challenging the March
9, 2017, decision, nor were any requests for reconsideration submitted. The approved conditions did
not undertake to retain jurisdiction for any possible later Examiner review of unresolved issues.
2. More than four months later, on July 24, 2017, the Riches' attorney, Dennis Reynolds, filed a
motion requesting that the Examiner clarify certain aspects of the March 9, 2017, decision, specifically
whether his ruling on project condition nos. 7, 12 and 13 had the necessary effect of modifying
condition no. 11, which had not been appealed earlier. Condition no. 11 prohibits placement of
drainage facilities within a 25 -foot nonfarmed buffer, some other particular requirements of which were
revised pursuant to the appeal of condition nos. 7 and 13. Condition no. 7, specifically, defined the
nonfarmed buffer uses more permissively than did the original City permit, allowing agricultural
activities to occur therein if they did not "have the potential for creating adverse offsite impacts." The
Riches claim that the drainage facilities prohibited by condition no. 11 will have no adverse offsite
impacts and therefore logically should be permitted also.
3. On behalf of the City attorney James Haney filed a response opposing the motion to clarify on
the grounds that it was untimely and the Examiner has no jurisdiction to entertain it. A declaration by
the planner assigned to the project was also submitted, asserting that periodic maintenance of the
Riches' proposed bioretention cell, grass swales and check dams would impact surrounding properties.
A hearing on the motion to clarify was held on August 1, 2017.
4. This order dismissing the Riches' motion to clarify is based solely on jurisdictional grounds and
implies no conclusion as to the validity of any substantive claim that the drainage facilities proposed
will either lack offsite impacts or their mandatory exclusion from the nonfarmed buffer is unsupported
by code. It is simply clear, as a matter of law, that the Examiner possesses no jurisdictional authority to
consider the motion at this late date. Administrative tribunals are purely creatures of legislative action
and partake of no authority that is not legislatively based. Unlike constitutional or common law courts,
administrative tribunals exercise no inherent powers. Any implied authority is limited to those
measures deemed necessary for the effective exercise of express powers.
5. Absent having imposed a decisional condition retaining jurisdiction for a specific purpose, the
City's Hearing Examiner possesses no ongoing general authority to revisit the substance of prior
decisions after relevant deadlines for filing an appeal or requesting reconsideration have expired.
Under the City's scheme quasi - judicial authority attaches to the making of specific decisions — either
decisions made by the Examiner directly after a public hearing or, within an appellate review, decisions
made by other City administrators.
6. The policy framework governing the City's creation of a hearing examiner system is articulated
at BIMC 2.14.030.A, which provides that "[w]henever any ordinance of the city requires a public
hearing to be conducted by the hearing examiner, the hearing shall be conducted in accordance with
the procedures established in Chapter 2.16 BIMC."
7. BIMC 2.16.020.A states that the " fj]urisdiction of the department director or the hearing
examiner is limited to those issues where ordinance or other appropriate authority grants the authority
to issue a decision, recommendation, or issue an order." Regarding administrative appeals of
departmental decisions such as the issuance of a VMP, BIMC 2.16.020.P(1)(a) specifies that, except for
public works and sign permit decisions, "[a]ll administrative decisions, departmental rulings and
interpretations made in accordance with administrative review procedures of BIMC 2.16.030 and
administrative decisions made under BIMC 1.26.070 may be appealed to a hearing examiner."
8. The baseline procedures for conducting a planning staff permitting review are set forth within
BIMC 2.16.030. BIMC 2.16.030.A provides that "[t]he purpose of this section is to establish
procedures for administrative decision - making on land use applications." With respect to procedures
(other than appeals) applicable after a decision has been issued, BIMC 2.16.030.G allows the
department director to "amend the decision at any time to correct clerical errors clearly identifiable
from the public record" subject to limitations that "[s]uch a correction does not affect any time limit
provided for in this chapter" or any clarification "does not materially alter the decision."
9. Parallel to BIMC 2.16.030.G, BIMC 2.16.100.0 (8) authorizes the Examiner to also "at any
time ... amend the decision to correct clerical errors clearly identifiable from the public record" and to
"clarify a statement in the written decision as long as the clarification does not materially alter the
decision." Amending, either directly or implicitly, a permit condition that was neither challenged by
the appellants nor discussed within the Examiner's decision necessarily would constitute a new
substantive change. How can such a change be characterized as merely correcting a clerical error
within the existing text when the text in question does not even mention the topic? The amendment,
removal or vacation of a permit condition that lies entirely outside the ambit of the appeal issues
litigated, whether done explicitly or by inference, comprises a material alteration of the appeal
decision.
10. BIMC 2.16.030.H states that an administrative permitting "decision of the department director
is the final decision of the city, subject to the appeal provisions in BIMC 2.16.020.P." In the instant
case, after the appeal decision was issued the planning staff evidently declined to revise condition no.
1 I of the VGM permit in the manner the Riches requested. But declining to take action to amend a
final and facially valid prior permit approval does not constitute a new affirmative decision that can be
separately appealed to the Hearing Examiner under the BIMC.
11. The City's further contention that the Riches' motion for clarification should be rejected on the
basis of the doctrine of res judicata also appears to have merit. As noted, a challenge to condition no.
11 was not included in the Riches' original VMP appeal. The vegetation management provisions of
BIMC Chapter 16.22 do not deal directly with placement of drainage facilities in nonfarmed buffers,
nor are questions regarding location of drainage facilities in nonfarmed buffers imbedded within the
actual appeal issues litigated by the Riches. Compliance with drainage facilities standards is a general
review requirement, not one uniquely dependent on the existence a proposal for farm uses.
12. The Riches' current allegations thus raise new issues that are separate from their original appeal
and, being related to general regulatory requirements that both exist independently of the VGM
provisions and were unaffected by the March 9, 2017, appeal decision, are based on potential
objections that were fully present and identifiable at the time their appeal was filed. For whatever
reasons the Riches opted not to include an available challenge to condition no. 11 in their initial appeal
document. There exists no ; iearing� Examiner authority that allows the Riches to second -guess this
tactical decision now, many months after the appeal decision was rendered.
ORDER:
The motion filed by Crystal and Yurie Rich requesting that the Hearing Examiner clarify his March 9,
2017, decision, is DISMISSED for lack of jurisdiction.
ORDERED August 8, 2017.
ord L. Smith, Hearing Examiner
of Bainbridge Island