2017-08-01 RICH, CRYSTAL & YURIE (REPLY)1
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BEFORE THE CITY OF BAINBRIDGE ISLAND
OFFICE OF HEARING EXAMINER
CRYSTAL and YURIE RICH,.
Appellants,
yr.
CITY OF BAINBRIDGE ISLAND, acting
through its Department of Planning and
Community Development,
No. PLN50468 VEG
REPLY TO CITY'S RESPONSE IN
OPPOSITION TO MOTION TO CLARIFY
I.: INTRODUCTION
Pursuant to the directille of the Examiner received this date,. Nh., and Mrs. Rieh`submit
this -rely to the City of Bainbridge Island Opposition to their Motion To Clarify. The question
of the day is whether or not under the unique circumstances the Examiner is allowed to Clarify
language in a Final Decision either to (1). correct language that did not fully convey the
examiner's intention or (2) to supply language. that was inadvertently omitted. The Rich's do
not ask the Examiner to re- write. Condition No I I, only to clarify his ruling. on that condition
is "subject to" the.holdings allowing use of the nonfarm buffer for stormwater control. In
this regard, the 13xain ner prohibited "agricultural activities or uses.... that have a potential for
creating adverse off- -site impacts...' Decision, p.15. Otherwise, other -rises were allowed,
since the buffer was not a "no touch setback.
REPLY I'N O.PPOSITION TO CITY'S
RESPONSE TO MOTION TO CLARIFY - 1 of 7
190373 -11
Di;N —Ms D. REYNOLDS LAW OFFICE
20O Winslow Way West. Suite 380
13ainbrid2e Island, WA 981.10
(206) 780 -6777
(206) 780.6865 (Facsimile)
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1I. ARGUMENT
.Appellants are shocked at the lack of-candor. or the City's refusal to acknowledge
provisions of its own Code and prior rulings of the Examiner in cases which it was. a party.
The Examiner has authority to rule on the Motion to Clarify: BINIC 2.1.6.1Od(C )(8),. Quasi
judicial xeview by' tearing examiner — In general states:
Corrections or Clarification. The bearing examiner at any time may arnend
the decision to correct clerical errors clearly identifiable from the public
record. Such correction does not affect any tiiite.limit. provided for. in this
chapter. The hearing examiner may clarify .a statement in the written decision
as long as the clarification does not materially alter the decision.
Corrections or Clarification. The hearing examiner at any time
may amend the decisions to correct clerical errors clearly
identifiable from the public record. Such correction does not
affect any time limit provided for in this chapter. The (rearing
examiner may clarify a statement in the written decision as
long as the clarifilcatiosa aloes. not.inateriafly alter the recision.
(emphasis added).
There is also clear precedent in the City of Bainbridge Island Hearing Examiner
decisions: for clarification of conditions of approval in shoreline decisions in particular and
land rise. decisions in general'
1~ first, . in I n . tlae �llrstter o f the Apjkcaf ion, far Conditional Use Permits:. Seattle Yacht
Clint, Scup /ci p 13442, Order November 13, 2006 at page 3, the Examiner revised
Conditions 19 and 20 "to provide the. necessary and appropriate. clarification." (Attached
hereto: as Appendix A). Second, the Hearing Examiner granted a request to clarify a decision.
in a reasonable use exception decision. in In the Matter o f the Application o f iVichael Olson
'
Prior to adoption of the. current code; the Examiner's authority to clarity or correct a decision was set faith. in
BIMC 16:20.100..
REPLY IN .OPPOSITION TO CITY'S
RESPONSE TO MOTION TO CLARIFY - 2 of 7
[90373 -11
DENNIS h: REYNOLDS L W C1McF
200 Winslow Way West, Suite 380
Bainbri €k Island, WA 98110
(206)1$0-6777
(206) 780-6865 (Facsimile)
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for a Reasonable Use Exception, RUE 09800, ORDER CLARIFYING DECISION,
December. 2.0; 2004 (Attached hereto as Appendix. B).
In addition to this express authori #y in the Cade and prior decisions, BIMC 2.1.4.030
further states that the Hearing Examiner is responsible for conducting hearings on and
adiudicating quasi-judicial cases involving a variety of complex land use and regulatory
compliance issues, and other issues NN hick the City Council may designate to the. Hearing.
Examiner by ordinance. There is nothing that limits use of the civil rules of procedure, when
necessary, at least by analogy. For years, the Examiner has routinely received briefs on
procedural. matters, citing.the Civil Rules and cases construing. there. The Code states: "The.
hearing examiner shall. issue decisions or recommendations based on relevant ordinances.
regulations., policies, statutes. and other authorities." This authority is also set forth in
Resolution No. 2003 -14, adopted. AprU 2003. which. adopted Rules of Procedure for the
Office of the Hearing Examiner,
Given Hearing Examiner decision. precedeint, the Examiner has both express and
inherent power to modify a decision to make it conform to the ruling they intended to enter.
,see CR GQ (a). Motions to clarify _ separate and apart from a motion for reconsideration - are
Frequently considered by other judicial bodies. This is shown via several reported
Washington appellate decisions, copies of which are attached hereto as Appendices C through
E.
First, in Grange,Ins -Assn v, Roberts; 179 Wn.App. 739, 320 P:3d 77 (20E3), the court
reviewed a decision of the trial court denying a motion. for clarification of a summary
judgment order more than a year after it was filed; the motion asserted that the order.could not
be final because a counterclaim was not formally dismissed. The trial court disagreed that
REPLY IN :OPPOSITION TO. CI T —S
RESPONSE, TO MOTION TO CLARIFY 3 of 7
[90373 -1.1
DENNIS RE.YN01 D5 LAW [lFFWE'
200 Winslbw Way West, su.ile 380
Mnbfio Qe Island: WA. 98110
(206) 790 76777
(206) 750 -6365 (Facsimile)
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clarification was required, ruling that the counterclaim lead, in fact beQn dismissed.. The
Examiner can take note. that such ruling this essentially clarified the. confiision, even if t11e
court said it denied the. request).
Second, in G ven v. Nrorinand v Pal'k, 137 Wn.App. 665; 151 P.3d 1038 (2007),. the
court reviewed a denial of a motion for clarification and ruled as. follows:
The . Edlemans argued in their motion that. the Community
Club's refusal to process the Edlemans' revised. application was
in violation of the trial court's prior ruling: The trial court
considered the Edlemans' request as a motion. to clarify the
court's final orders and judgment.
CR 60(a) allows: a court to correct clerical mistakes in a
judgment by correcting language that did not convey the court's
intention, or to supply language that was inadvertently .omitted..
Presidential. Estates. Apartment Assoc.. v. Barrett,. 129 Wash.2d
320; 326: 917 P.2d 1.00 (1996)., The rtrle does not, however.
allow a. trial court to rethink the case and enter an amended
judgment different than that originally intended, Presidential.
Estates, 129 V4Tash.2d at 326, 917 P.2d 100.
We .review determinations made by the .trial court under CR
60(a) pursuant to an :abuse of discretion standard. Presidential
Estates, 129 Wash.2d at 3.25 -26, 917 P.2d 100.
-The trial. court correctly noted that it had not entered any final
orders requiring the Community Club to consider future plans
submitted by the Edlemans. Accordingly, the trial court acted
within its discretion by denying. the Edlemans' motion.
Finally, in Pr e:riclef7iial Fstr=tle.s A��cr� tiraent ssacicrtes r Barr eft, 129 Wn,?d 320, 917
P.2d 100 (1996), the Supreme Court reviewed a decision, corrected after a.motion. for
clarification concerning a decision regarding easements.. The Court began by noting that the
tune. for appeal had passed. However, one of the litigants thereafter determined the intent of
the ruling had not been set forth, which caused some confusion. regarding compliance with
f re codes and ingress/egress. The trial. judge- granted the motion for clarification, ruling that,
REPLY IN OPPOSITION TO CITY'S
RESPONSE TO NOTION TO CLARIFY - 4 of 7
[903:71 -1]
Dj- \TNis D. riEYNOLDS LA"' OFFICE
200 WinMpw Way West; Suite 380.
BainbriPge Isiand. WA 98110
(206) 788 -6777
(206) 70 -6865 (F'acsimiic)
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in addition to granting ingress and egress for 18 living units, he had intended to allow Barrett-
Yeakel to (a) have the driveway to Colonial Commons II "s southern entrance available for
emergency access, and (b) lay a storm water drain pipe under the 390 -foot easement. The trial
court then entered an amended judgment to reflect what it said was its original intent.
The court ruled, "While the original judgment was, arguably, a bit ambiguous as to
where such a storm drain could be located, it is appropriate for a court to invoke CR 60(a) to
clarify an ambiguity in a judgment. In situations such as exist in this case, where a judgment
is unclear or ambiguous, a judge's latter - stated explanation of his or her original intent has
been accepted by the reviewing court to clarify such ambiguities." 129 Wn.2d at 328 -29
(emphasis added).
There can be no question under the plain language of the Code, the Hearing Examiner
precedent and Washington case law and CR 60(a), applicable by analogy, that the Examiner
has authority to rule on the Motion to Clarify. The Examiner has both express and implied
authority to ensure that the language of the decision and its conditions match the intent of the
Examiner.
III. CONCLUSION
For all the foregoing reasons, the Examiner has authority to rule on the motion for
clarification.
DATED this I" day of August, 2017.
DENNIS D. REYN S LA OFFICE
By L)
Dennis D. Reynolds, WSBA #04762
Attorneys_ for Appellants Crystal and l urie Rich
REPLY IN OPPOSITION TO CITY'S
RESPONSE TO MOTION TO CLARIFY - 5 of 7
[90373 -I1
DFNNIS D. REYNOLDS LAW OFFICE
200 Winslow Way WesL Suite 380
Bainbridge Island, WA 98110
(206) 7�0 -11777
(206) 790 -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 aria 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:
James E. Haney, WSBA 411058
❑
Legal Messenger
Meghan B. Frazer, WSBA #40768
❑
Hand Delivered
Ogden Murphy Wallace, PLLC
❑
Facsimile
901 Fifth Avenue, #3500
❑
First Class Mail
Seattle, WA 98164 -2009
❑
Ex pre Maid, Next Day
(206) 447 -7000, tel 1(206) 447 -0215, fax
a-Email
jhaneyoaxay.law.com; mfrazert'aomwlaw.com;
gzakkotnwlaw.com
Attorne s or City of Bainbridge Island
Joseph B Levan, WSBA #30136
❑
Legal Messenger
City of Bainbridge Island
❑
Hand Delivered
280 Madison Ave N
❑
Facsimile
Bainbridge Island, WA 98110 -1812
❑
First Clays Mail
(206) 780 -8622, tel
❑
Express Mail, Next
jlevan @bainbridgewa.gov
Dav
�araail
City of Bainbridge Island Staff Attorney
DATED at Bainbridge Island, Washington, this 1" day of August, 2017.
R1;PI,Y IN OPPOSITION TO CITY'S
RESPONSE TO MOTION TO CLARIFY - 6 of 6
[90373-11
�Z' �
Jon 6r enner
Paralegal
DE,xis D. REir \, EOL S LAW OPPICE
200 Winslow Way West. Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
137 Wn.App. 665 (Wash.App, Div. 1 2007 ), 57230 -a, Green v. Normandy Park 1 * *I div.0 (text -
align: (enter) P *1
Page 665
1.3711Wn.App. 065 (Wash.App. Did. 1 2007)
161 P.3d 1038
David GREEN and Cindy Green, and the marital community composed thereof; Plaintiffs,
William M. Edleman and Kathie A. Edleman, and. the marital community composed thereof,
Appellants,
V:
NORMANDY PARK, Riviera Section, Community Club; a Washington corporation,
Respondents.
William M. Edleman and Kathie A. Edleman, husband and wife, Appellants,
V,
Normandy Park. Riviera Section Community Club; Respondents,
Brent L. Cook and Sherri Cook; husband and wife; and Shannon Fawcett and Roxanne
Fawcett, husband and wife, Defendants.
Sue Benway and George Benway, husband and wife, Respondents,
V.
William M. Edleman and Kathie A. Edleman, husband and wife, Appellants.
No. 57230 -0 -1.
Court of Appeals of Washington, Division 1.
Feb. 5, 2007
As Amended on Reconsideration. In Part, April 6, 2007.
[151 P.3d 1039] [Copyrighted Material Omitted]
[151 P.3d 1040] [Copyrighted Material Omitted]
[151 P.3d.1041 ]
Peter J. Eglick, Joshua Adam Whited, Eglick Kiker Whited PLLC, Seattle, WA, for
Appellants.
Roxanne Fawcett (Appearing Pro Se), Shannon Fawcett (Appearing Pro Se), Jerry H.
Kindinger, Ryan Swanson & Cleveland, Robin Alison Schachter, Annmarie Barbara Petrich,
Seattle, WA, for Respondents.
DWYER, J.
Page 671
11 William. and Kathie Edleman built :a house in a Normandy Park neighborhood that does not
comply with provisions of the neighborhood's restrictive covenants and without obtaining prior
approval from the Normandy Park Riviera. Section Community Club, Inc. (Community Club), the
organization that enforces the covenants. The ensuing litigation led to the trial court's entry of
judgment in favor of the Community Club,and the Benways, neighbors of the Ed €emans, and
issuance of. an injunction requiring complete demolition of the Edlemans' house and garage.
The Edlemans appeal, assigning. error to the trial court's summary judgment ruling that
the Community Club had the authority to enforce the restrictive: covenants, to the trial court's
conclusion that the Edlemans' construction must meet interior setback requirements as measured
from the common boundary of the two .lots upon which the house sits, and to several other findings
and conclusions of the trial court. Because we agree that.the Edlemanswere.entitled to build
across their two lots without complying with interior setback requirements, we reverse the
judgment: and remand the matter to the trial court for a determination of the appropriate remedy in.
light of this decision. In all other respects; we affirm the decisions of the trial court.
FACTS
€. [Underlying Dispute
13 In November 2000, the Edlemans purchased a house sitting on land in the neighborhood.
known as the Riviera
Page 572
Section.. of the. City of Normandy Park. The Edlemans made .plans..to demolish the: existing house
and to construct a new house on the land.
1.4 In January 2002, after construction plans had been drafted but Before. construction
began, the Edlemans received a letter from.the Community CIuh requesting that they conform
their planned construction to: the provisions of the neighborhood covenants. The letter further
stated that all construction in the neighborhood was subject to Community Club approval and
requested.. that the Edlemans submif a site plan and preliminary building plan to the Community
Club for review. Enclosed with the letter was a petition signed by several residents of the..
neighborhood, requesting that the Edlemans voluntarily comply with the covenants.
15 In February 2002; the Edlemans responded by letter to the Community Club; offering a
"compromise" plan under which the Edlemans' house would. span the two lots, be set hack fifteen
and. one half to sixteen feet from the. property line to the south of the southern lot, eight feet from
the property line to the north of the northern lot, and 11.51 P.3d 10421 twenty feet from the street,
C21 An attached diagram illustrated the house's proposed placement.
6 In March 2002, the Community:CIuh responded. by letter. The letter stated. that the
Edlemans' neighbors were opposed to the Edlemans building a home outside those
Page 673
setbacks established by the covenants, and requested that the Edlemans submit new plans in
compliance with the setback requirements. Over the next few months, the Community: Club sent
several further letters to the Edlemans requesting compliance with the covenants and submission
of building plans to the Community Club.
¶ 7 The Edlemans demolished the existing house in late 2002, and commenced construction
of their house and garage in early 2003, without submitting further proposed plans to the
Community Club or obtaining Community Club approval.
18 In March 2004, the Edlemans. sent the Community Club the plans for the house and
garage then under construction. In Apri12004, the. Community Club replied.to the Edlemans by
letter disapproving of the planned construction. [31 The Letter detailed the setback and consent -to-
construct requirements of the. covenants, as well as the steps taken and information reviewed by
the Community Club in.making its determination, and. made specific recommendations for bringing
the plans 1 nto compliance with the. covenants.
¶ 9 The Edlemans continued.with the construction as planned, To date, both the. house. and
garage have. been substantially completed. The structures span the Edlemans' two lots, with the
house to the south and 'the garage to the north. The house sits on top of the boundary
Page 574
line between the two lots and, thus, is not set back from that boundary line on either of the lots.
The house complies with the covenants' setback requirement to the south, and the garage
complies with the covenants' setback requirement. to the north.. However, the house and the
garage both.encroach onto the covenants' 45 -foot street-side setback to varying degrees.. [4
11. Procedural History
�[ 10.The present fitigation.is the. result of three`separate lawsuits that were eventually
consolidated by the trial court.
7 1.1 1n the first case, the Ed €emans filed a complaint in April 2002 against the Community
Club, seeking a judgment declaring that the Community Club lacks the. right, standing, and.
authority to enforce the covenants..
W 121n the second case, the Edlemans filed a- comp €aint in October 2002 against the
Community Club and neighbors of the Edlemans, the. Cooks and the Fawcetts. The Edlemans
again sought a.judgment declaring: that the Community Club lacks the right, standing and authority
to enforce the covenants. The Edlemans also sought`either a declaration that the covenants have
been abandoned or enforcement of the covenant restrictions against the Cooks and the Fawcetts;
whose property the Edlemans alleged to be €n violation of covenant provisions..
13 In the third case,. the Benways, the Edlemans' neighbors to.the south, filed a [1151 P.3d
10431 complaint in December 2002 seeking an injunction prohibiting the Edlemans from
constructing a. house outside the setback lines and without Community Club approval, The
Benways immediately moved for a temporary restraining order prohibiting the Edlemans from
commencing construction. The trial court denied the motion..
14 In May 2402, the. Edlemans moved for summary judgment in the first case, arguing that
the Community
Page -575
Club is not a valid successor to the interests of the. developer arid, therefore; lacks the authority to
enforce the covenants. The Edlemans did not argue that the Community Club lacks authority to
enforce..the covenants for any reason other than its successor status. The trial court deniedthe
motion, noting that "it is a question of fact whether defendant is a successor with respect to the
1929 covenant."
15 In July 2003, the Community Club moved for summary judgment in the first case,
arguing that the Community Club is a valid successor to the interests of the developer and,
therefore, has the authority to enforce the covenants. The Edlemans responded to the motion,
arguing that the Community Club is not a valid successor to the developer and., therefore, does. not
have the authority to enforce the covenants. As with their prior motion for summary judgment, the
Edlemans did not argue in that response that the Community Club lacked authority to enforce the
covenants for any reason other than its successor status.
16 The trial court granted the Community Club's motion for. sum mary judgment, ruling. that:
"The defendant has the right, standing and authority to enforce covenants."
117 In February 2404, the Community Club moved to consolidate all three cases pursuant
to CR 42(a). C81 The Edlemans responded., requesting that the trial court consolidate only the
second and third cases. The Edlemans argued that the first case should not.be.included in the
consolidation because the singular question in that case was whether the Community Club had
the right,. standing, and authority to enforce the covenants, and the summary
Page 076
judgment ruling resolved all issues related to.that.question. After a hearing, the trial court granted
the Community Club's motion to consolidate.
118 The consolidated case. proceeded to bench trial on August 2, 2404. During trial, the
Edlemans sought to introduce evidence that the board of the: Community Club was not elected, a
circumstance potentially relevant to the issue .of the board's authority to enforce the covenants.
The Community Club objected based on the prior summary judgment ruling. The trial court ruled
that the Edlemans had abandoned any issues regarding the board's authority to enforce the
covenants by asserting to the court in a pleading that all issues relevant to the. boa rd`s authority
had been resolved by the summary judgment ruling rendered in the first case. Accordingly, the trial
court held that evidence regardin.g..how the board of the Community Club was constituted was
admissible only for its potential relevance to the question of the reasonableness of the board's
decision - making, not to the hoard's authority to enforce. the covenants.
119 The trial court entered judgment in favor of the. Community Club and the. Benways,
ruling that the covenants were valid and enforceable against the Edlemans, that the Benways had
standing to seek. enforcement. of the covenants, and that the Edlemans' house and garage were
built in violation of the covenants both because the buildings were constructed. outside the.
covenants' setback areas and because the Edlemans failed to obtain written. approval of the
Community Club prior to construction. Accordingly, the trial court.issued .a permanent injunction.
against the Edlemans requiring demolition of both the. home and the detached garage and.
enjoining the Edlemans from constructing any further buildings [161 P.3d 1044] on.the land
without first obtaining Community Club approval. 7]
Page 677
120 The trial court also issued findings of fact and conclusions of law. Therein, the trial court
found that the Community Club acted reasonably and. in.good faith in not approving the Edlemans`
proposed construction, that the Edlemans are required to comply with the covenants' interior
setback requirements between their two lots, that the covenants had not been abandoned and
were, therefore, valid and enforceable against the Edlemans, and that the Edlemans were not
entitled to a balancing of equities by the trial court in considering whether the house and garage
should be removed.
121 In March 2005.; the Edlemans filed a post judgment motion asking the trial court to
require the Community Club to process revised plans submitted by the Edlemans. f8] The trial
court treated the Edlemans' motion as a motion to clarify the court's final orders. The trial court
denied the motion.
DISCUSSION
I. Summary Judgment Ruling
A. Motion to Strike.
122 Before we can address the merits of the order granting summary judgment; our first
task is to resolve a. motion referred to us by our commissioner. The Edlemans move to strike from
the Corrected Brief of Respondents references and citations to two documents.. These documents
are the Affidavit of Susan Nelson- Beriway and the Supplemental Declaration of.Doyle
Montgomery. Each of these documents was designated as part of the appellate record key the
Community Club. However, neither is listed. in the trial court's order granting summary judgment to.
the Community Club. Accordingly, the Edlemans' motion is well- taken.
Page 678
123 The applicable rule is. clear:
RULE 9.12 SPECIAL RULE FOR ORDER ON SUMMARY JUDGMENT
On review of an order granting or denying a motion for summary judgment the appellate court will
consider only evidence and issues called to. the attention of the trial court. The order granting or
denying the motion. for summary judgment shall designate the documents and other evidence
called to the attention of the trial court Before the order on summary judgment was entered.
.Documents or other evidence called to the. attention of the trial court but not designated in the
order shall be made a part of the record by supplemental order of the trial court. or by stipulation of
counsel.
The companion rule is equally clear:
RULE 9.13 REVIEW OF DECISION RELATING TO RECORD
R party may object to a trial court decision relating to the record by motion in the appellate court.
124 It is not difficult to discern the reason for the existence of these rules. It is the appellate
court's task to review a ruling on a motion for summary judgment based solely on the record
Befvre.the trial court. Wash. Fed'n of State Employees, Council 28 v. Office of Fin. Mgmt.., 121
Wash.2d 152, 163, 849 P. ?d 1201 (1993); Gaupholm v. Aurora Office Bldgs., Inc., 2 Wash:App.
256, 257; 467 P.2d 528 (1970). The purpose: of RAP 9.12 "is to effectuate the rule that the
.appellate court engages in the same inquiry as the trial court." Wash. Fed'n of State Employees;
121 Wash.2d at 157, 849 P.2d. 1201.
¶ 25 A reality of modern ;trial practice is that not all. documents filed with a county clerk's
office make their way into the superior 1161 P.3d 1.445] court file prior to.. the court file being given
to the judge tasked with preparing for, and. ruling upon, a d'ispositive motion. To deal with this
phenomenon, our various superior courts have promulgated a plethora of local rules, including
those requiring the provision of "working copies" of pleadings to the judge Before whom the
Page 575
motion is to be argued. However, measures such as this do little to clarify to a reviewing court the
exact composition of the record Before the superior court judge at the. time the summary judgment
ruling was rendered.
926 Thus, RAP 9.12 was promulgated. It is designed to make clear the composition of the .
record. Before. the judge ruling on the. motion. Its provisions are simple, easy to comply with, and
mandatory.:
¶ 27 Pursuant to RAP 9.1.2, there.are threeways- -and only three ways- -for a document or
evidentiary item to properly be made part of the record on review: (1) the document or evidentiary
item may be designated in the "order granting or denying the motion for summary judgment "; (2)
the document or evidentiary item may be designated in a "supplemental order of the trial court'.'* or
(3) counsel for all parties may.stipulate that the document or evidentiary item was "called to the
attention of the trial court."
¶ 28 In. this case, as in most cases in our trial courts, counsel for the prevailing party was
afforded the opportunity to draft and present to the court the order granting summary judgment it
wished. the court to sign and enter. Thus, the Community Club is aggrieved - -if it is aggrieved at all -
-as a direct result of actions it took in preparing and submitting to the court the order granting
summary judgment ultimately entered by the. court.
¶ 29 The order granting. summary judgment does not designate either the Affidavit of Susan
.Nelson- Benway or the Supplemental Declaration of Doyle Montgomery as having been called to
the attention of the trial court.during the summary judgment proceeding. Thus, in the absence of a
.stipulation of the parties or a supplemental order of the:trial court, these evidentiary items are not
properly part. of the record .on. review. The Edlemans declined to enter into: any such` stipulation.
This left the Community Club with the option of seeking entry of a supplemental order by the trial
court,. Twenty -seven months after the. hearing on the motion for summary judgment, it did so.
Page 689
130 In response, the trial court entered a written.order denying the `Community Club's request. Iri
this order; the trial court recited that it had no independent memory as to whether these items had
been called to its attention. Moreover, the hearing had not been reported or recorded. However,
the trial court reviewed both its notes taken in preparation for the hearing and its notes taken
durin.g.the hearing and was unable.to discern any reference to the items. After diligent
consideration, the trial court entered its written order denying the motion for a supplementary
order.
9.31 At this point, the Community Club had two possible options: (1) acquiesce in the trial
court's decision and brief and argue the case on appeal without. reference to the two objectionable
items; or (2) faring a motion in this court, pursuant to RAP 9.93, seeking review of the trial court's
order refusing to designate the two objected -to evidentiary items for inclusion in the record on
review.
¶ 32 The Community Club chose a third course of action -- complete. defiance of the Rules of
Appellate.. Proced ure. Without the: permission of either this court or the superior court, the
Community Club designated the two items for inclusion in the Clerk's Papers. It then .cited to the
documents and argued from their content to this court in its. briefing.. This forced the Edlemans to
bring this motion to strike.
33 Remarkably, the Community Club exacerbated. the damage done by its defiance of our
rules of procedure by filing a written response to the motion to strike, arguing, in essence., that the
.rules do not apply to it because the trial judge was wrong. to deny its motion for a supplemental
order. This explanation. now meets the implacable gaze of the appellate court. The simple fact is
that the Community Club did not seek to avail itself of the opportunity provided
Page 681
by RAP 9. 13, choosing instead. to ignore the requirements. [151 P. 3d 10451 of RAP 9.12. The
Edlemans' motion to strike is: granted. [91
B. The Community Club is a Valid Successor to the Neighborhood Developer
134 The Edlemans first contend that the trial court erred by granting the Community Club's
motion for summary judgment and ruling, thereby, that the Community Club had the right, standing
and authority to enforce the covenants.. The Edlemans argue, in particular, that the neighborhood
developer was the. only party vested with the authority to enforce the covenants; and that the
Community Club is not a valid successor to. that developer. The Community Club argues; to the
contrary, that it is the developer's proper successor and that it possesses the developer's right and
authority to enforce the covenants.
¶ 35 We engage in a de novo review of a ruling granting summary judgment. Anderson v.
lNesla, Inc., 79 1111ash -App. 829, 833, 906 P.2d 335 (1995). Thus, we engage in the:same inquiry
as the trial court.. Wilson Court Ltd, v. Tony Maroni`s,. Inc., 134 Wash,2d 692, 698, 952 P.2d 590
(1998). Summary judgment is properly granted when the pleadings, affidavits, depositior:s, and
admissions on file demonstrate that there is no genuine issue of material fact and that the moving
party is entitled to summary judgment as a matter of iaw. CR 56(c), Hutchins v. 1001 Fourth Ave.
Assocs., 1.16 Wash.2d 217, 220, 802 P.2d 1350 (1.991). All reasonable inferences from the
evidence must be construed in favor of the.non- moving party. Lamon v. McDonnell Douglas Corp.,
91 W.ash.2d .345, 349, 588 P.2d 1346 (1979). The interpretation of language contained in a
.restrictive covenant is a question of law for the court. Parry v. Hewitt, 68 Wash.App. 664, 568, 847
P.2d 483 (1992 ).
Page 682
`T 36 From the evidence that was properly Before the trial court, we conclude that the trial court
properly ruled that the. Community Club is a valid successor to the developer, possessing. the
authority to administer and enforce the covenants' provisions, [10]
9 37 The covenants,. recorded in 1929, require that building plans for any of the lots: in the
neighborhood be approved by the developer ... The covenants further state that the provisions
therein are intended to "be a covenant running with the land." In 1934, the developer's estate was
sold to the Seattle Trust and Savings.Bankin a foreclosure.sale. In 19.37,. that estate was sold to
the. Normandy Park Company by quit claim deed.
¶ 38
In 1947,.the Normandy Park Company recorded a document entitled "Conveyance of
Authority to Enforce Restrictions" which purported to convey all the Normandy Park Company's
right, title and interest in the covenants, as well as its right. to. enforce the covenants, to the
recently. incorporated Normandy Park, Riviera Section,.Community Club, Inc. (NPRSCC), [11] and
to its "successors or assigns. In 1977,. the officers of that organization failed to file an annual
report, and the organization was administratively dissolved by the Secretary of State. The officers
of the organization continued to hold meetings and take steps to enforce the covenants after the
organization was:dissolved. [12l
[1$1. P.3d 1047] In 1988, officers filed new articles of incorporation.
Page 683
[13] After incorporation, the organization continued to take steps to enforce the covenants..
139 The Edlemans first contend that, by the. terms of the covenants, the authority to enforce.
the covenants was vested exclusively in the neighborhood developer and could riot, therefore, be
passed to subsequent. owners of the developer's interests.. We. disagree.
140 Restrictive covenants are interpreted to give.effect to the intention of the parties: to the
.agreement incorporating the covenants and to carry out the purpose for which the covenants were
created.. Riss v. Angel, 131 Wash.2d 612, 621., 934 R2d 669 (1997); RESTATEMENT (THIRD)
OF PROPERTY: SERVITUDES § 4.1 (2000). The purpose. of those. establishing the covenants is
the relevant intent. Riss, 131 Wash.2d at 621, 934 P.2d 669. Subdivision covenants tend to
enhance the efficient use of land and its value. The value of maintaining the character of. the
neighborhood in which the burdened. land is located. is a value shared by the,owners of the other
properties burdened by the same covenants. Riss, 131 Wash.2d.at 622 -24., 934 P.2d 669. Thus,
we must place "'special emphasis on arriving at an interpretation that protects the homeowners'
collective interests.' " Riss, 1.31 Wash.2d at 624; 934. P.2d 669 (quoting Lakes at. Mercer Island
Homeowners Assn v. Witrak, 61 Wash.App. 177, 181, 81'0. P.2d 27 (1.991 )),. Accord ingly, if more.
than one reasonable interpretation of the covenants is possible regarding an issue,. we must favor
that interpretation which avoids frustrating the reasonable expectations of those affected.by the
covenants' provisions.
t 41 Here, the cov.enants.state that they are intended to "run with the land." This means that
the benefit or burden created in the land passes automatically to successors.
Page 684
`to the benefited or burdened estates. RESTATEMENT (THIRD) OF PROPERTY: SERV€TUDES §
5.1 (2000 )..; RESTATEMENT (THIRD) OF PROPERTY: SERVITUDESS § 1.5, tint. a (Moo). [14]
142 The covenants also provide that the. developer possesses the authority to. enforce the
covenant provisions against the owners of the burdened, lots. In other words, the developer
retained the benefit of enforcement authority, and the purchasers of the lots. are burdened by the
..requirement.that they submit to the authority of the developer. However, the covenants
themselves do not specifically state whether the benefitof the enforcement authority passes to'the.
subsequent owners of the. developer's interest.
9 43 If such authority did not pass to subsequent owners, however, the purposes of the
covenants and the reasonable expectations of the lot owners would-be frustrated. The. lot-owners'
estates are benefited by the existence of an entity with authority to enforce: the covenants by
requiring owners of the burdened lots to submit construction plans to that entity for approval. The
benefit. created by the covenants adds value to the lot owners' land. Riss, 131 Wash.2d at 622 -24,
934 P.2d 66.9. By the terms. of the covenants, th at. benefit runs with the land. and passes to
subsequent purchasers of .individual lots. The benefit would be compromised if the authority to
administer and enforce the covenants terminated when the developer's existence ceased.
144 Accordingly, we interpret the provision in the covenants which states that the covenants
run with the land to mean that the benefit of the deveCoper's enforcement power properly passed
to those companies who acquired. the developer's. estate, the Seattle Trust and Savings Banc in
1934.and the Normandy Park Company 1 n 1937. [15]
[161 P.3d 1848]
Page 685
145 The Edlemans next contend. that the authority to enforce the covenants could not have validly
passed to the present -day Community Club because any such authority was necessarily
terminated by the NPRSCC's 1977 . administrative dissolution. We disagree.
146 The conveyance of authority issued by tiie Normandy Park Company in 1947 clearly
states Its intent to assign Its authority to the NPRSCC, and to its "successors or assigns." This
conveyance was a valid means by which to pass authority. RESTATEMENT (THIRD) OF
PROPERTY: SERVITUDES § 5.6(1) (2000) ( "[T]he power to enforce servitudes created to
implement general plan.of develaprnent may be transferred in whole or in part to an association
whose membership. is based on ownership of property included in the general plan. " ). [161
T 47 The covenants do not .define "successors or assigns." The Edlemans have not directed
us to any authority, which compels the result that the term may not include the unincorporated
entity which continued to enforce the covenants.between 1977 and 1988, or the subsequent
incorporated. entity which continues to enforce the covenants today. The. Community Club,
however, correctly notes that the South Carolina Supreme Court, in Battery? Homeowners Assn v.
Lincoln Fier. Res., Inc,, 309 S. C. 247, 427 S.E.2d 93 (1992), held. that the phrase "successors" in
covenants granting enforcement authority to. a homeowners association and its "successor or
assigns" included an unincorporated association of property owners formed after the
Page 686
original association's administrative dissolution. in so holding, the court rioted that "successor" is a
term of.art that may refer to successors of "corporate control," or sirriplyto an entity that "has in
fact succeeded. Battery Homeowners; 309 S.C. at 250, 422 S`.E.2d.93 (quoting Bremner v.
Alamitos Land Co., 11 Cal.App.2d 150, 53 P.2d 382 (1936)).
T 48 Pis with the covenants themselves, we favor the interpretation of the conveyance. of
authority that does not frustrate either the purpose of the covenants or the reasonable:
expectations of the lot owners of the. Riviera Section neighborhood. Accordingly,. we hold that the
Edlemans, on this record, have not raised an issue of material fact preventing the conclusion that
the Community Club as it exists today is a valid successor to the NPRSCC and its predecessors
and, as such, has the authority to enforce the covenants against the Edlemans.
C. Abandoned Issue May Not.Be Raised on. Appeal
�[ 49 In. their.appellate briefing, the Edlemans attack the manner in which the Community
Club board was constituted. The Edlemans point.out several disturbing aspects of the..board's.
composition, (1) its. initial members were. self- ap poi nted; (2) subsequent members have been
appointed solely by existing members; (3) the board is in no way accountable to the property
owners whose lots it. regulates; (4) the only members of the Community Club are those people.
who sit on the board, lot ownership alone does not result in Community Club membership; and (5)
critics of the Edlemans' building proposal were allowed to sit on the board. [17]
150 The question of "who may decide is one pertaining to the authority of the. decision
maker, See Heath v. Uraga, 106 Wash.App. 506, 514; 24 P.3d 413 (2001). Only a properly
nominated person may exercise the 1151. P.3d 1049] authority granted the decision maker by the
covenants. Heath, 106 Wash.App. at 515, 24 P.3d.413.. Thus., the Edlemans properly pleaded
these concerns
Page 687
in one. of their pleadings in the first. lawsuit, in which they sought a judgment declaring the.
Community Club to be without authority to administer and enforce the covenants..
%51 For some reason, . the:Edlemans then abandoned this issue ... In their pleadings in
opposition to the summary judgment motion, the Edlemans never raised this issue. Nor did they
raise the issue in their pleadings in support of their motion for summary judgment. Issues and
contentions neither raised by the parties nor considered by the trial court. when ruling. on a motion
for summary judgment may not be considered for the first time on appeal. Fem'n v. Donnellefeld,
.74 Wash.2d 283, 285, 444.P.2d 701 (1968). Concemed Coupeville Citizens. v. Town of Coupeville,
62 Wash.App. 408,.413, 814 P.2d 243 (.1991), Ashcraft v. Wallingford 17 vvash.App. 853, 850,.
565 P.2d 1.224 (1977)..
5 52 The Edlemans abandonment of this issue was apparently no. accident. The issue was
only pleaded by the Edlemans in the first lawsuit. The issue was neither raised nor discussed in
opposition to the Community Club's motion for summary judgment in that lawsuit on the question
of the Community Club's authority to administer and enforce the covenants. Moreover; after the
summa ry.jadgment order was entered, the Edlemans did. not appear for trial. on the assigned trial
date, indicating by that action their belief that there were no issues raised in their pleadings that
remained for resolution on the trial date. [18]
153 During trial on the consolidated cases, the trial court ruled that the Edlemans had
abandoned this. issue.. Following.trial, the trial court. entered Finding of Fact 9 to the saute effect:
Page 888:
At trial the Edlemans stated that issues relating to... whether the Board itself was properly formed
remained to be litigated, such as whether the [Community Club] board was properly constituted
and whether its actions were in violation of the requirements for a non - profit corporation. The
defendants protested that this issue was not Before the court and they were not prepared to
litigate: these issues: The only lawsuit in which [these) issues were raised was [the first easel,
where they were raised` in "Plaintiffs Answer; Affirmative Defenses and Reservation of Rights too
Defendants' Counterclaim for declaratory relief' which was signed on 10!17102. In that lawsuit, the
Edlemans filed pleadings with the Courtin support. of the Edlemans' efforts regarding
consolidation of these cases, and in those pleadings represented that all claims raised in that
lawsuit were resolved by [the trial court's summary judgment] ruling. The defendants had a right
to rely upon the statement of counsel as to the issues remaining to be tried. Therefore, the court
finds that the Edlemans abandoned these issues..
¶ 54 The. trial court's finding that this issue had been abandoned is supported by the record.
First, as.noted above, the issue was not raised in opposition to the summary judgment motion.
Second,: no trial was held on the first lawsuit,. indicating that.the summary judgment order resolved
all claims in that case. Third, in their pleading objecting to. consolidation, the Edlemans
affiirmatively stated that the. summary judgment order resolved al issues pertaining to the
Coin munity Club's authority to: act. Finally, the issue was: not pleaded in any case other than the
first lawsuit.
¶ 55 The trial court correctly ruled that this issue had. been abandoned by the Edlemans. It is
:a long - standing rule that abandoned issues will not be addressed .on appeal. RAP 2.5(a ) ; Peck` v.
Davies, 154 Wash. 55.9, 563; 283 P. 173 (1929 ); Gregory v. Peabody, 138 Wash. 591., 597, 244 P.
:998.(1926 Buckeye Buggy `Co. V. Montana Stables, Inc., 43 Wash. 49, 51, 85 P. 1.077 (1906);
1151 P,3d 1050] Soderberg Adver., Inc. v. Kent Moore Corp., 11 Wash.App. 721 737, 524 P.2d
1355 (1974); Stratton v. U.S. Bulk Carriers,.Inc., 3 Wash.App. 7901 793 -94, 478 P.2d 253 (1970).
Thus, the Edlemans are
Page 689
foreclosed from obtaining appellate relief premised on this claim.
IL Decisions Made After Trial
7 56 After entry of the trial court's order consolidating the three lawsuits, the cases went to
trial. At the conclusion of the 10 -day bench trial, the trial court entered numerous findings of fact
and conclusions of law, and entered judgment adverse to the Edlemans.
A. Standard of Review
� 57 Where the trial court has weighed the evidence, our review is limited to determining
Whether substantial evidence supports the findings of fact and; if so, whether those findings of fact
support the trial court's conclusions of law. Ridgeview Props. V. Starbuck, 96 Wash.2d 716, 719,
838 P.2d 1231. (1982 ); Keever & Assocs., Inc. v. Randall, :129 Wash.App. 733, 737, 119 P. 3d 926
(2005). Substantial evidence is evidence sufficient to persuade a fair- minded person of the truth of
the declared premise. Ridgevlew Props., 96 Wash 12d at 71.95 638 P.2d.1231; Keever & Assocs.,
129 Wash.App. at 737, 119 P.M. 926. If that .standard is satisfied, we will not substitute our
judgment for that of the trial cou rt. even though. we might have resolved disputed facts differently.
Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wash.2d 873, 879, 73 P. 3d 369 (2603). There is a
presumption in favor of the trial court's findings, and the party claiming. error has the burden of
showing that a finding of fact is. not supported by substantial evidence. Fisher Props., Inc. v.
Arden - Mayfair Inc., 11.5 Wash.2d 364, 369, 798 P.2d 799 (1990).
B. Internal Setbacks.
¶ 58 The Edlemans contend that the trial court erred by concluding. that they must meet the
covenants' setback requirements regulating. the area along `the boundary between their two
adjoining lots.: We agree.
Page: 690
159 Our Supreme Court has spoken clearly on this issue:
We find the applicable rule, supported by authority, succinctly stated ,in 20 Am.Jur.2d Covenants §
239, p. 807:.
Where an owner has acquired a. plot comprising more than. one contiguous lot and seeks to
build in such a manner as to overlap what would be the side. lines if the lots were owned
separately, a side -line restriction is applicable only to the outside lines of the plot, regardless of
how many lots it includes.
Weld v. Bjork, 75 Wash.2d 410, 412, 451 P.2d 675. ('19.69). Decisions in .other states that have
119]
confronted this issue are uniformly in conformance with this rule:
60 The court in Weld. relied., ih. part , on the fact that. the covenant at issue in that [151 P.3d
1.051] case did. not contain an explicit provision requiring owners of two or more contiguous lots. to
meet setback requirements between those lots. The court explained:
If this be the intention of the owner establishing the restrictive covenant, it. is difficult to understand
why such an intention was not made plain by the use of terms having recognized .meanings. It
would have been simple to state that each lot may have only one residential building placed so
that it complies
Page 691
with the sideline requirements of each lot as platted, and that one house could not be constructed
upon two or more lots owned by the same person. The covenant does not do this.
Weld, 75 Wash.2d at 411 -4.12, 451 P.2d 675. Similarly,. the covenants at issue herein.;eontain np
explicit provision prohibiting construction of a building across two lots owned by the same.person.
[201 Our Supreme. Court's decision in the .Weld case is, therefore, directly controlling.
161 The Community Club nevertheless contends that we should refuse to apply the Weld
rule in this case, arguing that the case's holding is dependent on the ru le. that. restrictive covenants
are to be "construed strictly agairist the grantor and those claiming: the benefits of the restrictions;"
Weld, 75 Wash.2d at.412, 451..P.2d 675., a rule that has since been rejected by the Suprer e
Court in Riss, 131 Wash.2d at 623, 934 P12d.669 (the court's role is to ascertain and give effect to
those purposes intended by the covenants rather than to. construe covenants strictly against the
grantor). Cur reading of Weld, however, does. not convince us that. the Supreme.Court's: holding
was so dependent on its strict construction analysis that the court would have held differently in its
absence. This view. is especially compelling given that Weld was decided consistently with the
uniform decisions of appellate courts across the country .
52 Moreover, even if we believed Weld to be incorrectly decided, we Would not be free to
ignore its applicability. The Weld decision has not been overruled in any subsequent Supreme
Court opinion. It, therefore, remains a. valid statement of Washington law as pronounced by our
Page 692
Supreme Court. Accordingly, we are duty -bound to apply the Weld rule; whatever its
underpinnings may have been. Hamilton V. Dept. of Labor& Indus., 1 11 Wash.2d 569, 571, 761
P.2d 618 (1988) ( "Once this:court has decided an issue of state law, that interpretation is binding
until we overrule it." (citing State v. Gore; 101 Wash.2d 481, 487, 681 P.2d 227 (1984), I211
superseded on other grounds by RCW 9.41.040(,} }]: WE ARE NOT free to ignore the holding in
Weld; neither was the trial court.
9 63 The trial court erred by concluding that the Edlemans were required to meet the
covenants: setback requirements regulating the area.-al ong the boundary. between their two
adjoining lots•. We reverse the decision of the trial court on this basis; arid remand the consolidated
causes to the trial court for a determination of the.appropriate remedy in light of our decision: In
order to provide guidance to the parties and the trial court on remand, we now reach 'the merits of
the Edlemans' remaining claims.
1151 P.3d 1052] C. Community Club Acted Reasonably and.in Good Faith
164 The. Edlemans next contend that the trial court erred by concluding. that the Community
Club acted reasonably:and in goad faith in processing and denying their proposed: building plans;.
[221 We: disagree.
Page 693
7 65 The reasonableness. of the. Community Club's actions is a question of fact. As such, we
review the trial courts findings on this issue to determine if they are supported by substantial
evidence. Ridgeview. Praps., 96 Wash.2d at 719, 638 P.2d 1231. Our review of the record
convinces us that.substantial evidence supports the trial court's determination.
166 The trial court properly noted that covenants requiring consent Before construction will
be upheld only if the authority to consent is exercised reasonably and in good faith. Riss,. 131
Wash.2d 612, 625, 934 P. 669; Day v. 5antorsola, 11.8 Wash.App. 746, 758, 76 P. 3.d 1190
(2003); Heath, 106 Wash.App: at 51.6-17,24 P.3d 413.
¶ 67 The reported cases guide our review of the trial court's determination, In Riss. the
Supreme Court held that the }homeowners association charged with the authority to approve or
disapprove construction plans unreasonably denied consent to construct. because the members of
the association did riot visit the site of the proposed construction or make objective: comparisons
with existing homes, the decision was based largely on inaccurate representations regarding the
impact of the proposed. structure made by two of the. board members,. and the association
ultimately imposed more burdensome requirements than those imposed by covenant: provisions
requiring. compliance with specific size and setback guidelines. Riss, 131 Wash.2d at 625;.628 -29,
934 P.20 669.
16.81 . n. Day, it was similarly held that consent to con struct. was unreasonably withheld
because the denial was based largely on investigations made and information prepared by a
neighbor who was adamantly opposed to the proposed construction, rather than being based on
an objective investigation by the committee granted the authority to approve or disapprove
proposed construction plans. Day, 118 Wash.App. at 7591 762, 76 `P.3d 1190.
Page 694
769 On the other hand, in Heath, the court held that the individual charged with the authority to
consent acted reasonably in withholding that consent, even though he may have had a personal
interest.in prohibi.iting the proposed construction, :because he conducted an objective investigation
over several days which included a review of the proposed plans and a visit to the site of the
proposed construction. Heath,. 106 Wash.App. at 517 -1.8; 24 P.3d. 413.
76 Here, the Community Club did not attempt to impose. more burdensome setback
requirements than those imposed by the specific setback provisions of the covenants' themselves.
Furthermore, the evidence .Before. the trial court demonstrates that the Community Club board.
made a reasonable and objective investigation Before denying the Edlemans' proposal. The
Community Club compared the Edlemans' proposed construction with other homes in the. Riviera
Section neighborhood,. considered the views of neighbors who would be affected by the proposed
construction, studied Community Glub records to determine what general criteria were used in
determining whether to graht.approval and variances, and visited the site of the proposed
construction.
71 The Edlemans contend that the Community Club acted unreasonably because it
consulted with neighbors, such as the Benways, who were known to be opposed to the Edlemans
construction. We disagree. The Community Club's consultation with neighbors [151 P.3d 1053]
was a reasonable method. by. which to determine the impact of the proposed construction on the
neighborhood: See Riss, 131 Wash. 2d at 629, `934 P.2d.669 (objections of neighbors often aid in
the enforcement of restrictive. covenants).
¶ 72 The Edlemans also contend that. the trial co urt's. fi nd i rig s were contrary to the evidence
and that the Community Club acted unreasonably by appointing an outspoken opponent of the
Edlemans' construction to the decisior3- making board. We disagree wit h.the. Edlemans on this
point as well. As the court in Heath made clear, the potential bias of a decision maker is not
sufficient, standing
Page 6.9.5
alone, to render unreasonable the decision to approve or disapprove a proposed construction.
Heath, 106 Wash.App, at 517 -18, 24 P.3d 413..As was the case in Heath, the Community Club
made a thorough and objective investigation into the Edlemans' proposed construction. In contrast
.to; the situations arising in Riss and Day, the evidence here led the trial court to conclude that the
Community Club's decision was the product of that objective investigation. The record contains
.substantial evidence in support of this finding.
7 73 Finally, the Edlemans ask us to hold that proceedings enforcing covenants are per se
unreasonable when undertaken by an organization, such as the Community Club, in which the
decision makers are not elected by the property owners subject to the covenants, and where the
only members of the organization are the board members themselves, rather than property
owners as a whole ]23] As discussed previously, questions regarding the composition of the
decision- making board go to its "authority." Questions regarding the "reasonableness" of the.
decision made presuppose the authority of the decision maker and focus on the process employed
and the facts considered. r241 In the lawsuit they initiated questioning the authority of the
Community Club to act, the Edlemans abandoned this claim. Their attempts to "bring the issue in
through the back door" are unavailing. The question of "authority." deals with who acts. The
question of ".reasonableness" deals with what actions are taken. The Edlemans' concerns
regarding how the..Community Club board is constituted do riot pertain to the question of
"reasonableness," and the trial court did not err by discounting this evidence when evaluating.that
question. [25]
Page.695
¶ 74 The trial court's findings of fact on the issue of the "reasonableness" of the Community Club's.
actions. and 'its "good faith" are supported by substantial evidence:. Those findings support the trial
court's conclusion that the Community Club acted lawfully in processing and denying the
Edlemans' proposed building plans. There was no error.
D.: Covenants Have Not Beer: Abandoned
75 The Edlemans next contend that the trial court erred.by finding that the 1151 P.3d
1 @54] covenants have not been abandoned. L261 We disagree.
Page 697
T 76 Whether the evidence supports a finding of abandonment is a question of fact. White v.
Wilhelm, 34 Wash.App. 763, 769 -70, 665 P.2d 407 (1983), Sandy Point improvement Co. v.
Hiner, 26 Wash.App. 317, 319; 61.3 P.2d 160 (1980). As such, we review the trial court's findings
on this issue to determine if they are supported by substantial evidence. Ridgeview Props., 96
Wash.2d at 71.9, 638 P.20 1231. Again, our review of the record convinces us that substantial
evidence supports the trial court's determination.
¶ 77 If a covenant applying to an entire.tract has been habitually and substantially violated.
so as to create an impression. that it has. been abandoned, equity will not enforce the covenant..
.Mt. Baker Park Club, Inc. v: Colcock, 45 Wash.20 467, 471., 275 P:Zd 733 (1954).; Sandy Point, 26
Wash.App. at 319, 613 P.2d 160. A few such violations, however; do not constitute abandonment.
White, 34 Wash.App. at 769 -70, 665 P.2d 407. See, e.g., Sandy Point, 26 Wash.App. at 319,613
P.2d 160 (two violations in TO00 -lot development did not constitute abandonment); Reading V.
Keller, 67 Wash.2d 86, 90 -91, 406 P.2d 634 (1965) (one violation did not constitute
abandonment).
178 Here, the evidence Before the trial court demonstrates that the covenants have been
consistently enforced by the Community Club.and .its predecessors. The Edlemans were able to
pointto only a few specific instances of questionable covenant enforcement,among the 500 lots
.governed by the covenants, and many of the homeowners in those. instances.had. received .
variances from the Community Club in order to build outside .of the covenant set -back lines,. as is
permitted by covenant provisions.
179 The trial court's findings of fact on this issue are supported by substantial evidence.
Those findings support the trial court's conclusion that the covenants had not been abandoned
and are, therefore, valid and enforceable against the Edlemans. There was no error.
Page 698
E. Edlemans Not Entitled to a Balancing of the Equities
180 The Edlemans next contend that the.trial court erred. by refusing to:balance the equities
of the.parties Before issuing the injunction requiring demolition of their home and garage. [27] We
disagree.
.181 We review a. trial court's decision to grant an injunction for abuse of discretion.. Holmes
Harbor Wafer Co. v. Page, 8 Wash.App. 600, 603, 508 P.2d 628 (1973 )..Accord Niemann v.
Vaughn Cmty. Church, 154 Wash.2d 3651 374, 113 17.3d 463 (2005) ( "trial courts have broad
discretionary power in fashioning equitable remedies"). A trial court abuses its discretion when its
decision or order is manifestly unreasonable, or exercised on. untenable grounds or for untenable
[151 P. 3d 10665] reasons. Brand v. Dept of Labor & Indus.; 139 Wash.2d 659, 665, 989 P.2d 1111
(1999).
82 In considering whether to grant an injunction requiring the removal of an erected .
building or structure, a trial court. may balance the equities of the parties, weighing factors such as
the character of. the interest to be protected and the relative hardship likely to result to the
defendant. if an injunction is.granted or to the plaintiff if it is denied. Holmes Harbor Water Co., 8.
Wash.App. at 603, 508 P.2d 628. The benefit of the doctrine of balancing the equities, however, is
reserved for the innocent party who proceeds without knowledge or warning that his structure
encroaches upon anothees property or property rights. Hollis v. Garwall, Inc.,. 137 Wash..2d 683,.
699700, 974 P.2d 836 (1.999); Bach v, 5arich, 74 Wash.2d 575, 582, 445 P..2d 648 (1968);.
Peterson v. Koester,. 122 Wash -App. 351:; 359, 92 P.3d 780 (2004). If a party takes a calculated
risk -by proceeding, despite notice that doing so violates the property rights of others, that party
forfeits the right to a balancing of the equities_ Hollis, 137 Wash,2d at
Page 699
700, 974 P.2d 836; Arnold v. Melani, 75 Wash.2d 143, 152, 449 P.2d 800 (1968 ).
183 The trial court made several findings that the Edlemans had clear notice that they were
constructing their house and garage in violation of the covenants. [28] The trial court.'s findings of
fact on this.matter are supported by substantiia] evidence in the record. The Edlemans were given
clear warning Before construction began that they were required by the covenants to submit their
plans to the Community Club for approval and to comply with specific setback require€nents for
their lots. The trial court correctly concluded that the Edlemans took a calculated risk by
proceeding with construction in the face of such warnings. [29]
84 The trial court's 'findings that the Edlemans were on notice:that their construction was in
violation of the covenants
Page. 700
are supported by substantial evidence. Those findings support the trial court's conclusion that the
Edlemans are. not entitled to a balancing of the equities. Again, there was no error.
111 Post. - Judgment Motion
85 Finally; the Edlemans contend that the trial court erred by denying the Edlemans' post -
judgment motion for the entry of an order requiring that the Community Club process the
Edlemans' revised application. We disagree.
186 The Edlemans.argued in their motion that the Community Club's refusal to process the
Edlemans' revised application was in violation of the trial court's prior ruling. The trial court.
considered the Edlemans' request as a motion to clarify the court's final orders and judgment.
[151 P.3d 1.056] 9 87 CR 60(a) allows a court to correct clerical mistakes in a judgment by
correcting language that did not convey the court's intention, or to supply language that was
inadvertently omitted. Presidential Estates Apartment Assoc. v. Barrett, 129 Wash.2d 320, $26,
917 P.2d 1. 00 (1996). The rule does not, however; allow a trial court to rethink the case and. enter
an amended judgment different than that originally intended.. Presidential Estates, 129 Wash.2d at
326; 917 R 2 1.00.. We review determinations made by the trial court urider C 60(a) pursuant to
an abuse of discretion standard. Presidential Estates, 129 Wash.2d at 325 =26, 917 P.2d 100.
188 The trial court correctly noted that it had not entered any final orders requiring the
Community Club to consider future plans submitted by the Edlemans. Accordingly, the trial court
acted within its discretion by denying the Edlemans' motion.
1V..Remand
189 On remand, the trial court.retains full .authority to exercise its discretion in determining
the appropriate remedy in light of this decision. It is not properly our role to su bstitute.. ou r judgment
for that of the trial court and we do not seek to do so. As we have previously noted, "the
Page 701
central idea of discretion is choice: the court has. discretion in the sense that there are no'officially
wrong' answers to the questions posed." Goggle v. Snow,. 56 Wash.App. 499, .505, 784 P.2d 554
(1.990).. It is to the trial judge that the law gives the. authority to exercise discretion in formulating an
appropriate remedy. We remand this matter to the trial court for that purpose.
V. Conclusion
190 We. affirm the trial court's determinations that the Ed emans violated the covenants by
erecting their house without first obtaining the written approval of the Community Club, by similarly
erecting the irgarage without first obtaining. the written approval of the Community Club, and by
building the house and garage outside the covenants' setback requirements for the street sides of
their two adjoining lots. We reverse the trial courts conclusion that that the Edlemans violated the
covenants by building their Mouse and .garage over the setback areas along the boundary between
their two adjoining lots.
1 91 Affirmed in part, reversed in part, and remanded.
WE CONCUR: 13ECKER and BAKER, JJ.
Notes:
[�] The covenants ("Declaration of Reservations and Protective Restrictions ") were recorded in
1929. The schedule attached to the. covenants identify the Edlemans' Land as two lots, # 35. and #
36, and state that any home constructed on. either of the.lots roust be set back forty -five feet from
the street to the east, seven feet from the lot line to the north, and thirty feet from the lot line to the
south.. Section 1.8 of the covenants provides that no more than one single - family dwelling shall be
constructed. on any lot's building site:. Section 1 defines ''building site" as that area within the
setback lines on each lot. Section 23 states that no house or garage shall be erected on any of the
lots in the neighborhood unless the plans: and. specifications are submitted to the neighborhood
developer and the developer has approved those plans in.writing. Section 19 provides that the
developer has. authority to. grant "reasonable variations" from setback requirements.
[Z] The Edlemans planned to demolish the existing house; also built across the boundary line
between the two lots, in order to accommodate their planned new structures.
[3] Specifically, the Community Club stated:
Mhe [Community Club] Board unanimously concludes. it cannot approve your current construction
plans. The Board unanimously concludes your proposed two structures together and your North
Building in particular are not in harmony With the Riviera Section because they are drastically,
materially and substantially different in size, width and length, square. footage, design,
preservation of open green space and set backs incomparison to all of the following: the
previously existing residence; the structures the [Community Club] has approved in. the. past; the
existing character of the Rivera Section as a whole; grid the common plan of the Covenants. With
a dwelling across the: middle of two combined lots, the Board concludes it cannot: approve your
current construction plans with the size of your buildings so far outside the setback lines and
without provision for open green space. The Board cannot permit a purchaser to buy adjacent lots
in the Riviera Section and comply only with the outermost covenant. setbacks.
[4.1 The front of the house encroaches four feet into the.setback area. at. one point. The entire front
of the garage encroaches twenty feet into the setback area.
(5] While the Edlemans alleged in one of their pleadings in the first. case ("Plaintiffs' Answer,
Affirmative.Defenses and Reservation of Rights to Defendant's. Counterclaim for Declaratory
Relief') that the board lacked authority to enforce the covenants. because the board members had
not been elected, that issue was not mentioned in the Edlemans' response to the Community.
Club's motion for summary judgment.
161. CR 42(a) allows for.the consolidation of cases involving a "common question of law or fact."
J71 The trial court also entered judgment in favor of the. Fawcetts, finding that the Edlemans had
failed to show.that they were aggrieved parties in relations to the Fawcetts' alleged violation of the
covenants. The Cooks were no longer parties to. the litigation at the time of the. trial court's ruling.
In November 2004, the Edlemans submitted .a revised set of plans to the Community Club and
a fetter requesting a meeting with the board. In January 200.5, the Community Club responded,
stating, "The Board will deal either with litigation or process your post - trial request for a variance,
not both."
191 Unquestionably, the Edlemans incurred expense in bringing this matter to our attention. Thus.,
the Edlemans. request for the imposition of monetary terms in their favor. is granted. They may
apply to our commissioner for a calculation of attorney fees reasonably incurred. for efforts in this
court,. solely regarding this remotion. Our commissioner will make the necessary award.
[101 Having determined that. .the Affidavit of Susan Nelson- Benway.and the Supplemental
beclaration.of Doyle Montgomery are not properly apart of the record on appeal, we do not rely
on either document in.our analysis of this issue..
[11] The NPRSCC in existence. in 1947 was a different entity than the Community Club in
existence today, though. both entities. were incorporated under the same name (Normandy Park
Riviera Section Community. Club, Inc.) To avoid confusion, we refer to the incorporated entity that
existed between 1947 and` 1977 as. the "NPRSCC" in order to distinguish it from the Community
Club incorporated in 1988 and presently in existence.
1121 Such steps included corresponding with individual homeowners regarding compliance with the
covenants, requiring homeowners to submit construction plans, and approving or disapproving
construction plans.
[13] At least two of the three officers who signed the 1988 articles of incorporation were active in
the organization Before incorporation. At least one of the signing officers had been involved in the
NPRSCC.Before its administrative dissolution.
(1 41 No specific instrument of transfer is necessary to pass.servitude benefits and burdens to
successors to the benefited or burdened property; they pass automatically. RESTATEMENT
(THIRD) OF PROPERTY: SERVITUDES § 5.1, cmt. b (2000).
[15].. Neither the RESTATEMENT nor any Washington cases set out general or default rules for
determining succession} to developer rights: and obligations in the context of subdivisions such as
the one here. The RESTATEMENT explains that the question of whether a. party succeeds to a
developer's rights must be determined on a case -by -case basis based on an interpretation of the
document creating those rights and the facts of the particular case. RESTATEMENT (THIRD) OF
PROPERTY; SERVITUDES § 5.1 cmt. c (2000). Employing this. approach, .cases from other
jurisdictions have found succession to a developer's rights or obligations in the absence of an
explicit. provision, as we do here, See; e.g., Lake Forest Prop. owners' Assn V. Smith, 571 So.2d.
1947, 1059 (Ala. 1990) (parent corporation with which developer corporation merged successor to
developer's voting rights); Sherwood Estates Homes Assn v. Schmidt 592 S.W.2d 244, 247 748
(Mo..Ct.App.1979) (developer's assignmentto homeowners association of right. to enforce
restrictions carried with it the right to grant or deny approval'of plans for structures. despite.
covenant language requiring. approval by the. developer, because assignment was consistent with
the purpose of the development).
1161 The homeowners as a whole were the members of the NPRSCC as it was originally
constituted, and. were authorized to vote to elect the NPRSCC's board members.
[17] The Community Club is not a horeowners association as provided for by statute. See ch.
64.3.8 RCW.
[18] Indeed, following questioning by this court at. oral argument, the Edlemans submitted a
Statement of Additional Authority, citing Olympic Fish Prods., Inc. v. Lloyd, 93 Wash.2d 596; 692,
611 P;2d 737 (1980) for the proposition that the purpose of summary judgment is to avoid a
useless: trial, The. Edlernans' view that a trial was "useless" after entry of the summary judgment
Order is a further demonstration that they had. abandoned their challenge to the authority of the
Community Club predicated upon the manner in which the board was constituted.
[101. See, e: Stowe v. Briggs, 451 S.W.2d 152 (K y. develo er may build a artrnent
g., 99 (Y 7 ( p Y P
complex on contiguous lots because sideline restrictions applicable only to the outside lines of
entire plot); Watters v. Blatt 249 Mass. 340, 144 N.E. 196 (1924) (interior setback requirements
not applicable to house built across interior dividing line of two lots owned by one person);
Goldstick.v. Thomas, 237 Mich: 236; 211 N 666 (1927) (setback requirements not applicable to
apartment house built across interior dividing line of two. lots owned by one person); Marrick v.
Furnari, 237 Mich. 239; 21.1. N.W. 667 (1927) (sideline restrictions applicable only to exterior
boundaries of tract when contiguous.lots. are owned by same person.); Scott v.. Board of Missions
N. C. Annual Conferel7ce, 252 N. C, 443; 114 S.E.2d 74 (1960) (building to be constructed on three
adjoining lots must comply only with sideline restrictions from exterior lots); Stone v. Avalon Ice &
Cold Storage Co., 2 N.J.Misc. 628, 99 N.J. Eq. 4425, 1.31 A. 579 (1.925)., aff'd, 2 N.J. Misc. 628, 99
N.J.Eq: 425, 131 A.579 (9925) (building may be built across dividing line between two contiguous
lots notwithstanding. sideline restrictions); Shaffer v.. Temple Beth E'irmeth, 198 A.D. 607, 190
N.N.S. 841 (N.Y.App.Div.1921) (sideline restrictions do not prohibit erection of one building on two
adjoining lots after acquisition by same owner); Dougherty v..Fellabaum, 71 Ohio Law Abs. 161.,
130 N.E.2d 247 (Ohio Ct.App.1.952) (home and detached. garage built across. two. Lots need not
conform to setback requirements between the two lots);. Covey v. Gross, :377 Pa.Super. 580, 547
.A.2d.1214 (1988). (treating two contiguous lots as a single lot for purposes of applying restriction
permitting private garages only lots where a house. has first been erected).
[201 Section 1.8 of the covenants provides that "[n]o more than one single-family dwelling shall be
constructed on any'building site '.as established on lots," and. Section 1 of the covenants defines
the "building site on any lot" as "that portion of the lot which is included within.the set -back lines
from the street and side and rear properly lines of such lot." Here, there are two building sites on
the Edlemans' land, and the covenants prohibit the construction of more than one dwelling on
either of them. As was the case. in Weld, however, these provisions do not prohibit the erection of
one dwelling across two building sites. Accord Busch v, Johnston, 107 Fla. 631,145 So., 872
(1933); Struck v. Kohler, 187 Ky.. 517, 219 S.W. 435 (1920) (restriction. against constructing more
than one building on single lot did.not prohibit.constructing one building, across two lots).
[21.] " In failing to follow directly controlling authority of this court, the Court of Appeals erred.....
[O]nce this court has decided an issue of state law, that interpretation is binding on all lower courts
.until it is overruled by this court. Godefroy v. Reilly; 146 Wash. 257, 262. P.. 6390928).; cf. Hutto v.
Davis, 454 U.S. 373,.375, 102 S.Ct. 703, 70 L..Ed.2d 556 {1982} ('unless we wish anarchy to
prevail Within the federal judicial system, a precedent of this Court must be followed by the lower
federal courts ...' }." State v, Gore, 101 Wash.2d at 487, 681 P.2d 227.
[22] The. trial court found in part:
The Edlemans claimed the [Community Club]'s actions. and denial.of their plans were
unreasonable, arbitrary and not in good faith. This Court finds the credible testimony and
documentary evidence at. trial established by a preponderance. of the evidence that the
[Community Club] Board's action relating to the Edlemans and its denial of the Edlemans`
proposed structures were reasonable, not arbitrary, and in good faith. Finding of Fact (FF) 37. The
trial court concluded that the Community Club's ''actions relating to the Edlemans and its denial of
the Edlemans' proposed structures were reasonable and in good faith." Conclusion. of Law (CL)
3(e }.
[23] This is a version of the claim the trial court deemed abandoned.
[24] Indeed, in Heath, the sole.individual charged with the responsibility to approve or disapprove
construction plans was appointed, not elected. The Heath court upheld the reasonableness of that
individual's decision based on the objective investigation conducted And procedures employed.
Heath, 106 Wash.App. at 817 -18; 24 P.M.413.
[25] The Edlemans also contend that we should deem the procedures undertaken by the board
unreasonable because the Edlemans were denied both notice of those board meetings in which
their construction plans were discussed and the opportunity to be heard Before the board.. We
disagree. The trial court found:
The Edlemans claimed the [Community Club]'s dealings with them and the approval process was
unreasonable and flawed and they were denied the process that other homeowners received. The
Court finds by a preponderance of the evidence that the Edlemans were not denied any. due
process by the [Community Club] relating to the Covenants. The Edlemans never requested a
hearing with the [Community Club] and, the. evidence establishes that no homeowner who ever
requester[ a.hearing was. deniied one. Once the Plans were submitted to the [Com.munity Club] in.
February, 2004 and approval was denied, the Edlemans were offered the chance to communicate
with the Board and did not do so. The [Community Club].did not deny any Bearing to the
Edlemans. The [Community Club] acted reasonably under all the circumstances, including the fact
that litigation was pending between the parties. FF 3.4. This finding is supported by substantial
evidence. in the record. The Edlemans' contention is unavailing.
[26] The trial court found:
The Edlemans claimed the Covenants were abandoned due to lack of enforcement or inco€isistent
enforcement. The Edlemans failed to prove by a preponderance.of the evidence that the
Covenants.were. habitually or substantially abandoned. The Edleman's [sic] provided examples of
instances, some alleged and some established by the evidence; in which property owners have
allegedly violated the Covenants by not. getting approval for plans. and building outside the
established buildable: space for a lot. However, given the amount of homes in the Riviera Section,.
such anecdotal evidence does. not establish a habitual or substantial abandonment of the
Covenants or the Covenants'. general plan. I`F 2 .2. Mhe testimony and documentary evidence,
.including the records of the (Comm unity Club], established that the Covenants have not been
abandoned. While there is not evidence of enforcement every year since 1929, there was
substantial evidence that the [Community Club] has been involved with compliance issues
consistently since the Covenants were established. FF 23. The court concluded that "jt]he
Covenants are valid, binding and. enforceable." CIL 3(a).
[27] The trial court concluded that "[t] Edlemans, who had. notice of the Covenants.; the setbacks
on their two lots ... and the: requirement to submit plans and obtain [Community Club] written
approval Before construction, and were aware that a lawsuit was pending. which could require
them to remove their structures if they did not prevail., are not entitled to a balancing of the equities
as to whether the structures should be removed." CL 5.
[28] The trial court found:
In January 2.002 approximately ten months Before the Edlemans commenced construction, the
[Community Club] sent a letter to.the Edlemans requesting they abide. by the Covenants. and
informing them about the Covenants and the specific setbacks for their 2 lots. The [Community
Club] also provided the Edlemans with that letter and a petition from over 30 homeowners,
including the Benways, requesting the Edlemans voluntarily comply with the Covenants including
the setback restrictions in the Covenants. FF 28. Before they commenced construction on. their
property, the Benways warned Mr.. Edleman that the Covenants would. be legally enforced against
the Edlemans: FF 29. This Court finds the credible,testimony and documentary evidence at trial
established by a preponderance of the evidence that the Edlemans were repeatedly informed
orally and .in writing about the Covenants, the setbacks, and that they were required to submit
plans and obtain the written approval of the.. [Community Club] Board Before constructing any
residence or garage: The Edlemans received written communications...: FF 32:
[29] l7espite the Edlemans' contention to the contrary,. it was not reasonable for them to conclude
from the trial court's denial of the Benways' motion for al mporar y restraining. order that they were
entitled to proceed with construction without risk of facing future injunction. The trial. court's denial
of the motion did not amount to a ruling that the covenants were. not enforceable against them.
The Edlemans were not entitled to subvert.the requirements of the covenants by completing
construction. Before. the trial court had ruled on the covenants' enforceability.
179 Wn.App. 739 (Wash,App. Div. 3.2013 ),.693565 -1, Grange fns. Assn v. Roberts 1 * *1 div.c1
Itext- align: center) ! * *1
Page 739
179 Wn.App. 7.39: (Wash.App. Did. 3 20131
320 P.3d 77
Grange Insurance Association, Respondent,
V.
Elizabeth. Roberts et a1 ., Appellants
No. 69356 -5 -1
Court of Appeals of Washington, Division 3
October 28, 2013
Order Granting Motion to Publish Marc hi 10, 2014.
[320 P.3d 781 [Copyrighted Material Omitted]
[320 P.3d 79] [Copyrighted Material. Omitted]
[32Q P.3d 80] Appeal.from Superior Court Snohomish County. Docket No(s): 10-2-07609A.
Judgment or other matter being reviewed. Summary Judgment. Judge signing: Joseph P. Wilson.
Date entered. July 22, 2011.
We affirm summary judgment dismissal and deny Roberts attorney fees and cost .on appeal.
Elena L. Garella ; and Patrick L., Vail (of Cogdill Nichols Rein Wartelle Andrews Vail .), for
appellants.
Michelle Menely (of Gordon Thomas Honeywell LLP ), for respondent.
AUTHOR: t-au, J. WE CONCUR: Dwyer, J., Becker, J.
OPINION
[324 P.3d 811
Page 743
Lau, J.
1 An insurer's duty to defend arises " if the insurance. policy conceivably. covers the allegations.in
the complaint, whereas the duty to indemnify exists only if the. policy actually covers the insured's
liability." Woo v. Fireman's Fund Ins. Ca., 161 Wn.2d 43, 53,154 P.3d 454 (2007) (emphasis
omitted). Grange Insurance Association issued an. insurance policy to Jane and Wes Roberts. [1]
The policy imposes on Grange a duty to. defend its insureds but excludes intentional conduct from
the duty to defend. Rebecca Brandis sued Roberts, alleging. various torts stemming
Page 744
.from Roberts '.s intentional conduct, The trial court ruled in a declaratory judgment action that
Grange owed. Roberts no duty to defend against the Brandis complaint. Because Roberts's
insurance policy provides no conceivable coverage for the allegations in the Brandis complaint,
the trial [320 P:3d 82] court properly granted declaratory judgment in Grange's favor.
FACTS
12 This coverage dispute began with litigation between siblings. The Trust and Estate Dispute
Resolution Act, chapter 11.96A RCW, lawsuit involved sisters Rebecca Brandis, Suella Hershaw,
Myra. Converse, and Myrna Seifert [2] against their sister; %Jane.Roberts, and her husband, Wes.
Brandis soughtto set aside transfers of real.and personal property their now deceased mother,
Elizabeth, made to Roberts. The Brandis complaint also sought damages alleging that Roberts
obtained the property transfers by engaging in fraudulent acts, exerting undue influence over their
mother, " actively interfer[ing]" with their mother, and. malting false statements and. " ..bad
mouth[ing]" them.. The complaint also. alleged that Roberts's conduct resulted in the loss of an
expected inheritance,. loss of a parent -child relationship, and emotional distress /outrage.
13 Regarding interference and outrage; the complaint alleged:
Jane isolated Elizabeth from her longtime friends and family. Jane actively interfered with the
relationship between Elizabeth. and her family and friends, including her other children.. Jane. made.
false statements about and " badmouthed" those other parties in order to so intentionally interfere
with their relationships. Jane's behavior towards the other family members, .including making false
accusations regarding prior child abuse claims, went beyond the bounds of decency; [was]
atrocious, and [was] intolerable. The family and. friends experienced
Page 745
extreme emotional distress as a result of Jane's interference with their relationships with Elizabeth,
which were adverseiy affected.
The complaint's request for relief sought; among other things, " a judgment for damages .
based on. [Roberts's] tortious interference with expected inheritance, "" a judgment for damages
based on [Roberts's] tor tious interference with the parent/child relationship,`' and " a judgment for
damages based on outrage caused by [Roberts's] outrageous conduct which proximately caused
severe emotional distress."
14 Roberts's Grange policy provisions provide coverage -- subject to certain exclusions- -for bodily
injury and property damage liability (coverage H) and personal and advertising .injury liability
(coverage I ). Coverage H provides in relevant part,
COVERAGE H BODILY INJURY AND PROPERTY DAMAGE. LIABILITY
1. I nsuring. Ag reement
a. We will pay those sums that an insured becomes legally obligated to pay.as damages Because
of bodily injury or property damage to which this insurance applies. We will have the right and duty
to defend an insured against any suit seeking those damages. However, we will have no duty to
defend an insured against any suit seeking damages for bodily injury or property damage to which
this insurance does not apply.... , b. This insurance applies to bodily injury and property damage
only if. (1) The bodily injury or property damage is caused by an occurrence ... .
Page 745
2: Exclusions
This insurance. doe& not. apply to;
a. Expected Or Intended Injury Bodily injury or property datnage expected or intended from the
standpoint of an insured....
SECTION V -� DEFINITIONS
2. Bodily injury means bodily injury, sickness or disease sustained by a person, and. includes
death resulting from any .of these at any time..... 17. occurrence means an accident, including
... .. ...............
continuous or repeated exposure [320 P.3d 831 to substantially the same general harmful
conditions.
¶ 5 Coverage I.: provides in relevant part:
COVERAGE I - PERSONAL AND ADVERTISING. INJURY LIABILITY
1.. Insuring Agreement
a. We will pay those sums that an insured becomes legally obligated to pay as damages because
of personal and.advertising injury to which this insurance applies. We will have the right and duty
to defend an insured against any suit seeking those damages. However, we will have no duty to.
defend an insured against any suit. seeking damages for personal and advertising injury to which
this insurance. does not apply, ,... 2. Exclusions This insurance does not apply to personal and
advertising injury: a. Knowing Violation Of Rights Of Another Caused. by or at the direction of an
insured with the knowledge that the act would violate the rights of
Page 747
another and would inflict personal and advertising injury. b. Material Published With Knowledge Of
Falsity Arising :out of oral or written publication of material, if done by or at the direction of an
insured with knowledge of its falsity.:.:. SECTION V m DEFINITIONS ... ; 18. Personal and
advertising injury means injury, including consequential. bodily injury, arising out of one. or more of:
the following offenses:.... d. Oral or written publication; €n any manner, of material that slanders or
libels a person or organization or disparages a person's or organization's goods, products, or
services. e. Oral or written publication, in any manner, of material that violates a person's right of
Privacy.
16 In June 2010, Roberts tendered. defense. of the .Brandis lawsuit to. Grange. Grange accepted
the tender under a full reservation of rights .and retained defense attorney Tom Heller to represent
Roberts: Grange informed Roberts that their policy may not provide coverage and asserted its
right to " file a declaratory judgment action asking a court of law to determine that Grange has no
duty to defend the potential lawsuit and/or to pay any judgment or settlement of the claims being
asserted."
17 In September 2010, Grange filed an action for declaratory relief seeking a determi nation. of its
duty to defend and indemnify Roberts in the underlying action. The complaint alleged. that Grange
had no duty to defend or indemnify Roberts because no " occurrence" happened as defined under
the insurance policy; some or all of Brandis's claims alleged no bodily injury" or property
damage"
Page 748
within the policy's coverage; and exclusions applied to those claims falling under " bodily injury,
property damage," or " personal and advertising injury. Summonses were sent to Roberts and
each of the Brandis plaintiffs in the underlying suit. 181
18 In June 2011, Roberts filed an answer,. affirmative defenses, and a counterclaim alleging bad
faith by Grange. The counterclaim.alleged, "By fling the Coverage Action, Grange has breached
its fiduciary duties to [Roberts] and committed the tort of insurance bad faith. For G. range to prevail
in the Coverage Action, Grange will necessarily be required to allege facts that; if proved true,
would be detrimental to [Roberts's] defense in the Underlying Tort Action." Roberts argued, " By
seeking. to prevail in the Coverage Action, Grange. will effectively be helping Jane's siblings to
prove their case against her. in the Underlying Tort Action."
[320 P,3d 84] 1 9::Grange moved for summary judgment, requesting a ruling that it had no
duty to defend Roberts in the underlying action. Roberts .filed an opposition and a cross motion to
stay. The basis for the motion to stay was the same: as that asserted. in Roberts's counterclaim: "
Any attempt by Grange to offer proof that Jane possessed the intent required to invoke the
exclusions at issue would work directly against [Roberts's] efforts to avoid liability in the underlying
action, and would therefore constitute bad faith."
¶
10 The court granted Grange's summary judgment.motion in July 2011::
[The court] DECt ARES that the claims being made against defendants [Jane] and " John Doe"
Roberts in the underlying action of Brandis, et. al. v. Elizabeth Roberts; et. al:, Snohomish County
Cause No. 08- 4- 00999 -3 do not trigger coverage under
Page 749
Grange's.Policy.No..FPO . 10 10054 and, thus, that Grange has no duty to indemnify, or to continue
providing a defense to Roberts for the claims being made in the underlying [case]. Consequently,
Grange may cease providing a defense to Roberts.
The court's order did. not specifically address Roberts's counterclaim. The parties agree that
by considering and. ruling on the summary judgment motion, the trial .court implicitly denied
Roberts's cross motion to stay.
11 Shortly after the court determined Grange had no duty to defend, Roberts tendered defense .
to a second.insurer, Unigard Insurance Company. Unigard. defended under a reservation of rights .
for a period.of time but is no longer providing coverage.
7 92 More than a year after the trial court granted Grange's summary judgment motion, Roberts
asserted that the July 2011 order was not final order because the bad faith counterclaim was
never formally. dismissed. Grange filed a motion for clarification of the court's su.rnmary judgment.
order. Grange argued that the court effectively dismissed Roberts's. counterclaim when it denied
the motion to. stay and it was only a " ministerial. error that the [summary.judgment] order did not
so state." Report of Proceedings (RP) (Sept..21, 2012) at 5. Grange moved the court to amend its
prior. summary judgment order to indicate it was a final order dismissing Roberts's counterclaim. In
September 2012, the. cou rt. denied Grange's motion for clarification: and formally dismissed
Roberts's counterclaim " wlprejudice [and] this. is the final .order of the court.."
ANALYSIS 141
Standard of Review
113 We review a summary judgment order de novo, perfon -ning. the same inquiry as the trial court
and considering
Page 750
facts and reasona ble. inferences in the light most favorable to the nonmoving party, Jones v..
Allstate Ins. Go., 146 Wn.2d 291, 300, 45 P3d 1068 (2002)..Summary judgment is proper if no
genuine issue of material fact remains and the moving party is entitled to judgment as a matter of
law, CR 56(c).
T.'14 Similarly; the construction of an insurance contract is a question of law. State Farm Gen. Ins.
Co. v. Emerson, 102 Wn.2d 477, .480,.
[320 P.3d 861 687 P.2d 1139 (1984); Bordeaux; Inc. v. Am. Safety Ins. Co., 145 Wn.App. 687,
694, 18.6 P.3d 1188 (2008 }. Courts construe insurance policies as contracts. Austl. Unlimited; Inc.
v. Hartford Cas. Ins.: Co., 147 Wn.App. 758, 765, 1.98 P..3d 514 (2468.). We consider the policy as
a whole and give it a "'fair, reasonable, and sensible construction as would be given to the
contract by the average person. purchasing insurance. "' Weyerhaeuser Co. v. Commercial Union
Ins. Co., 142 Wn.2d 654, 666, 1.5 P.3d 115 (2000) (internal quotation marks omitted) (quoting Am:
Nat'l Fire Ins. Co. v. B& L Trucking & Constr..Co. , 134 Wn.2d 413, 427 -28, 951 P.2d 259. (1998)). "
[I]f the policy language.is clear and unambiguous, the court must:enfarce it as written and may not
modify it or create ambiguity where none exists.." Austl. Unlimited, 147 Wn.App. at 765 -66. A
policy is ambiguous only if its provisions.are.
Page 751
susceptible. to two different interpretations, both of which are reasonable. Allstate Iris. Co. v..
Peasley, 131. Wn ..2d. 420, 424, 932 P.2d 1244 (1997).. We resolve ambiguity in favor of the
insured. Moeller v. Farmers Ins.. Co. of Wash., 173 Viln..2d 264, 272, 267 P.3d .998 (2011). When
interpreting insurance policies, we are bound. by the definitions provided in the policy. Austl.
Unlimited, 147 Wn.App. at 766.
Duty.to Defend
¶ 15 In Washington, "'[t]he duty to defend is different from arid broader than the duty to
indemnify. "' Edthonson v. Popchoi, 172 Wn.2d 272; 282, 256 P.3d 1223 (20.11) (alteration in
original) (quoting Ana. Best Food, Inc: v. Alea. London, Ltd., 168 Wn.2d 398, 404,. 229 P.3d 693.
(2010)), 1n Woo v. Fireman's Fund Insurance Co., our Supreme Court summarized the law
governing an insurer's duty to defend:
The duty to defend " arises at the time an action is first brought, and is. based on the potential for
liability." Truck Ins. Exch. v. VanPort Homes, Inc., 147 Wn.2d 751, 760, 58 P.3d 276 (2002)
(emphasis added). An insurer has a duty to defend "'when a complaint against the insured,
construed Liberally, alleges facts which could, if proven, impose. liability upon the insured within the
policy's coverage. "' Id. (quoting. Unigard Ins. Co. v: Leven, 97 Wn.App. 417, 425, 983 P.2d 1155
0999)), An insurer is not relieved of its duty to defend unless the claim alleged in the complaint is
" clearly not covered by the policy." ld. (citing Kirk V, Mt. Airy Ins.. Co., 134 Wn.2d 558, 561, 9.51
P.2d 1124 (1998)). Moreover; if a complaint is ambiguous, a. court will construe A liberally in favor
of " triggering the insurer's duty to defend." Id. (citing R.A. Hansom Co. v.: Aetna Ins. Co., 26
Wn.App.. 290, 295; 612 P.2d. 456 (1980)).: In contrast, the duty to indemnify " hinges on the
insured 's actual liability to the claimant and actual coverage under the policy." Hayden [ V. Mut. of
Enumclaw lns; Co. ], 141 Wn.2d [55,] 64[, 1 P.3d 1167 (2000)] (emphasis added).. In sum, the duty
to defend is triggered if the insurance. policy conceivably covers the allegations in the complaint,
whereas the duty to indemnify exists only if the policy actually covers the insured's liability.
Page.752
There are two exceptions to the rule that: the. duty to defend must be determined only from the
complaint, and both the exceptions favor the insured." Truck Ins., 147 Wn.2d at 761. First, if it is
not clear from the face of the complaint that the policy provides coverage, but coverage could
exist, the insurer must investigate and give the insured. the benefit of the doubt that the 'insurer has
a duty to defend. Id. Notice pleading rules, which require only a short and plain statement of the
claim showing that the. pleader is entitled to. relief, impose a significant burden on the insurer to
determine if there are any facts in the pleadings that could conceivably give rise to a duty to
defend. Hanson, 26 Wn.App. at 294. Second, if the allegations in the complaint conflict with
facts known to or readily ascertainable by the insurer,' "' or if " "' the allegations . are arrmbiguous
or inadequate," "' facts outside the complaint may be considered. Truck Ins., 147 Wn.2d. at 76.1
(quoting Att. Mut. Ins. Co. v. RofFe, Inc., 73 Wn.App. 858, 862,872 P.2d 536 (1994) (quoting E -Z
Loader Boat Trailers, Inc. v Travelers Indem. Co.,: 106 Wn.2d 901, 908,
[324 P.3d 86]
726 P,2d 43.9 (1986 )}j. The insurer may not rely on facts extrinsic to the.camplaint. to deny the duty
to defend.: -it. may do so only to trigger the duty. Id.... Although the insurer must bear the expense
of defending the insured,. by doing so under: a reservation of rights and seeking a declaratory
judgment, the insurer avoids breaching. its duty to. defend and incurring the potentially greater
expense of defending itself from a claim of breach. Id.
161 Wn.2d 43, 52 -54, 164 P.3d 454 (2007) (fourth alteration in original) (footnote omitted). In sum,
IF `if there is any reasonable interpretation of the facts: or the law that could. result: in coverage, the
insurer must defend. "' Edmonson, 172 VVn,2d at 282 (quoting Alea, 158 Wn.2d at 41]5). Once an
event triggers the duty to defend, insurers may not desert: policyholders while awaiting an
indemnity determination. Alea, 168 Wn.2d at 405. The obi igation:encompasses any claim that
might be covered under any permissible construction of the policy. Baugh Constr. Co. v. Mission
Ins. Co., 836 F.2d 1164, 1168 (9th Cir. 1988) (applying Washington law); Travelers Ins. Cos. v. N.
Seattle Christian & Missionary Alliance,. 32 Wn.App. 836, 839 -40, 650 P.2d ?50 (198.2).
Page 753
Policy Coverage
116 Roberts argues, " The Brand is. complaint triggers [Grange's] duty to defend because it alleges
defamation, outrage, tortious interference with expected. inheritance and tortious interference with
a parent /child relationship, all. of which claims are potentially covered by the policy." Appellant's Br.
at 16 (formatting ornitted ). Under the principles in WQo and the authority it cites, Grange's duty to
defend triggered if the Brand is% complaint, construed liberally, alleged facts. that could, if proven,
impose liability upon Roberts within the policy`s coverage. Woo, 161 Wn.2d at 52 -53. Relief is
unavailable to Grange unless the claim alleged in the complaint is clearly not covered by the
policy.. Woo, 161 Wn.2d at. 53. The parties do not dispute that the policy. expressly excludes
coverage for intentional acts..
Outrage
17 Roberts contends that the outrage allegation falls within Grange's policy coverage for bodily
injury and property damage. This question depends on whether Brandis's alleged injuries:
constitute an "occurrence" under the terms of the policy. Under the policy, an " occurrence"
means an accident, including exposure to conditions which results in (a) bodily injury or (b ) .
property damage.
118 Brandis alleged bodily injury in the form of outrage. To establish a claim for the tort of
outrage - -also known as intentional infliction of emotional distress- -the plaintiff must show that {1}
he or she suffered severe emotional distress; (2) the emotional distress was inflicted intentionally
or recklessly, but not negligently; [�] (3) the conduct complained
Page 754
of was outrageous and extreme; and (4) he or she personally was the subject of the outrageous
conduct. danaszak v. State, 173 Wn.App. 703, 726, 297 P. 3d 723 .(21313). The defendant's
conduct .must be " `so outrageous in character, and so extreme in degree, as to go. beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community."' Reid v. Pierce County, 136 Wn.2d 195, 202, 961 P. 2d 333 (1998) (emphasis
ornitted) (quoting. Grimsby v. Sarnson, 85 Wn.2d 52, 59, 530 P.20 291 (1975)).
¶ 19 Relying on Woo, Roberts argues thateven if her conduct was intentional, it is conceivable.
that her conduct resulted in unintended. [320 P.3d 87] injuries to Brand is. In Woo, the insured
dentist inserted. boar tusks into his patient's mouth while. she was under anesthesia. and took.
humiliating photographs of the prank. The dentist's staff gave the photographs to the. patient. Woo
1.61 Wn.2d at. 6.3 -64. The patient sued the dentist, alleging bodily injury resulting from both
negligent and intentional conduct. Woo, 161 Wn.2d at 63. The dentist's insurer argued that his
general liability policy excluded coverage for the boar tusk prank because that conduct was clearly
" intentional." Woo, 161 Wn.2d at 63. The relevant policy language provided defense. coverage for
bodily injury% caused by an `'occurrence," which was:defined as " '[a]n accident,. including
continuous or repeated.exposure to substantially.the same general harmful conditions. "' Wdo, 161
Wn.2d at 62 -63 (alteration in original). The policy also defined "accident" as a "'fortuitous
circumstance, event or happening that takes place and is neither expected nor intended from the
standpoint of the insured::
Resp'ts at 4 -5.
Woo, 161 Wn.2d at 64 (some emphasis added),
21 In Woo, the insurance policy's plain language required that Woo intend not only the event or
happening that caused the injury but also the injuries that resulted. Here, the definiitian of "
occurrence" includes " accident." In contrast to the policy in Woo, the term " accident" is not
defined in Grange's policy. We thus look to the. common law definition. Safeco Ins. Co. of Am. v.
Butler, 118 Wn.2d 383, 401,.823 P.2d 499 (1992). For purposes of liability insurance,
" an accident is never present.when a .deliberate act .is p.e.rformed unless some additional
unexpected, independent and unforeseen happening occurs which produces or brings about
Page 756
the result of injury or death. The means as.well as the result must .be unforeseen, involuntary,
unexpected and unusual."
Butler, 118 Wn.2d at 401 (quoting Detweiler v. J. C. Penney Cas. Ins. Co., 110 Wn.2d 99,1041 751
P..2d 2.82 (1988)). An. act is deliberate when it. is " done with awareness of the implications or
consequences of the.act." Nationwide Mut. Ins. Co. v...Hayles,: Inc,, 136 Wn.App. 531, 538, 150
P.3d 589 (2007).
122 Where an insured acts intentionally but claims that the result was unintended, the incident is
not an accident if the insured Knew or should have known facts from which :a prudent person
would have concluded that the harm was reasonably foreseeable. State Farm Fire &.Gas. Co. V.
Parrella, 134 Wn.App. 536, 540, 14.1 P.3d 643 (2006). Stated another ways " jw]e define [320 P.3d
881 an outcome as accidental only if both the means and the result were 'unforeseen, involuntary,
unexpected and unusual. "' Allstate Ins. Co, v. Bauer, 96 Wn.App. 1`1, 16, 977 P:2d 617 (1999)
.(quoting Grange Ins. Co. v. Brosseau, 113 Wn.2d 91, 96, 770 P.2d 123 (1989)). [P]ursuant to the
common sense definition, 'accident' is not a subjective term. Thus, the perspective of the insured
as opposed to the tortfeasor.is. not.a relevant inqui.ry.. Either an incident is an accident or it is not:"
Roller v.. Stonewall Ins. Co., 115 Wn.2d.6791 6851 801 P. 2d 207 (1990), overruled on other
grounds by Butzberger v. Foster, 151 Wn..2d 396, 89 P.3d 689.(2004).
:7 23. Under the common law definition of " accident," a reasonably foreseeable harm resulting from
deliberate conduct is not an " accident" and, thus, not an " occurrence" under the Grange policy
language a# issue. While Brandis could prove outrage by showing: "reckless" conduct, the
complaint's factual allegations, broadly construed, allege intentional conduct by Roberts. Even .
accepting. Roberts's argument that she could have acted recklessly without. intending the result,
the complaint clearly alleged deliberate actions by Roberts. As defined above, to be reckless is to
know of and disregard a substantial risk. of
Page 7.57
harm. Roberts's actions could foreseeably result in the plaintiffs' severe mental distress. There is
no coverage for Roberts's alleged conduct under the Grange policy's. clear and explicit language
because the conduct does not constitute an " occurrence" within the meaning of the policy. The
trial court properly determined that the Grange policy triggered no duty to defend the outrage
claim.
124 An alternative ground also exists to affirm the trial court on this issue. We. note that
Washington courts consistently interpret " bodily injury" provisions in insurance policies to include
claims for physical injury but exclude claims for purely nonphysical or emotional harm unrelated to
a physical injury . Although neither party briefed this issue, " an appellate court may sustain a trial
.court on any correct ground, even though that ground was not considered by the trial court." Nast
u. Michels, 107 Wn.2d 300, 308, 730 P.2d 54 (1986). Accordingly, this case can be decided as a.
matter of law.based on whether the term " damages because of bodily injury" in Roberts's policy
includes damages for emotional. distress unrelated to physical injury.. See Daley v.. Allstate Ins. Co.
135 Wn.2d 777, 958 P.2d 990 (1998).
125 Cases in Washington and other jurisdictions recognize that damages for bodily injury include
damages for emotional distress if that distress arises as a result of a. physical injury. See
Thompson v. Grange Iris. Assn, 34 Wn.App. 151, 161, 5.6.0 P.2d 3a7 (1983) (damages for loss of
consortium allowed where. a. spouse suffers bodily injury and. can no longer perform spousal
functions); Michael Sean Guinn & L.. Kimberly Steele, Insurance Coverage Opinions, 36 S. Tex. L.
Rev. 479, 527 (1995) (mental anguish as a consequence of bodily injury is covered ) .
26 Here,. the record contains no evidence or allegation of physical injury..1nstead,. Bra ndis
alleged purely ern-otional injuries due to Roberts's statements and actions. Grange has a duty to
defend Roberts against claims asserting " damages because of bodily injury.," As noted above,
Page 758
Grange's policy defines " bodily injury" as." bodily- injury, sickness or disease. sustained by a
person, and includes death resulting frorn any of these at any time." In Daley, our Supreme Court
construed similar policy language in an. underinsured motorist policy defining " bodily injury" as "
'bodily injury, sickness, disease or death. "' Daley, 135 Wn.2d at 784. The court noted,'" The clear
majority of states, including Washington, have held that the term 'bodily injury' does not include
damages for purely emotional injuries." Daley, 135 Wn.2d at 784 =85 (footnote omitted), The court
discussed its previous cases interpreting "bodily injury" in. the insurance context:
Washington follows the majority of j urisd icti ons. which find that.the term " bodily injury" does not
encompass recovery for purely emotional injuries. In E Z Loader, this court considered whether an
insured could recover for sex and age discrimination pursuant to a claim for wrongful [320 P.3d
89] discharge under her employer's .comprehensive general liability policy which allowed.recovery
for "bodily injury," E Z Loader, 105 Wn.2d at 903 =06. The term bodily injury" was defined in the.
general liability policy., similar to the present case, as." bodily. injury, sickness or disease Id. at
904. The court concluded that the employee coverage contemplated actual bodily injury, sickness
or disease resulting in physical impairment; as contrasted to mental impairment. Id, at. 908.. The
court reasoned that the.terms'" sickness" and " disease" were modified by the word IT bodily" and
therefore, " [ m]ental anguish and illness; and emotional distress are not covered by the express
terms of the policy." Id. The court: declined to stretch the policy to the point to where it would
cover such problems.
Daley,: 135 Wn:.2d at 786 (alterations in original).. [?]
T 27 The court also cited with approval our decision in Northwest Farm Bureau Insurance Co. y.
Roberts, 52 Wn.App. 888, 765 P.2d 328 (1988):
Page 759
Division One of the Court of Appeals has followed F- Z.Loaderfinding that, similar to the argument
made in the present case, an insured's homeowners policy which allowed damages for "bodily
injury" did not encompass an insured's claim for negligent infliction of emotional distress.
Northwest Farm Bureau, 52 Wn.App. at 891. Like the policy at issue here, the homeowners policy
in Northwest Farm Bureau defined " bodily injury" as physical harm, sickness or disease Id.
Thus; courts in. Washington. and elsewhere have found. that coverage for " bodily injury" does not
include claims for purely emotional distress and we find that the present case does not warrant a
different result.
Daley, 135 Wn.2d at 787 (alteration in original).
¶ 28 Here, Roberts's policy defines " bodily injury" in terms substantially similar to the definition of
" bodily injury" discussed in Daley and the. cases Daley cites. Those authorities construe such
policy language to exclude emotional harm from coverage. Because the outrage claim alleges
erhotianal harm, the Grange policy triggers no duty to defend. under the bodily injury provisions..
Tortious Interference Claims
129 Roberts contends the complaint alleged " two untested theories of tort recovery: (1). Tortious
interference with expected inheritance and t2j tortious.interference with the relationship between
an adult child and parent." Appellant's Br. at 25. Roberts argues," It is.unknown whether or not the
innovative tortious interference torts claimed by Brandis will, if recognized in.Washington, require.
proof of intention to cause the.consequential. harm, or just proof of the intention to undertake the
harmful act, or simply proof of reckless disregard or even merely negligence." Appellant's Br. at
26 -27. Citing the rule that any uncertainty favors.defense of the insured., Roberts contends that
where the tort claimed is new to Washington, and could include elements that would be covered
by the Policy, the Insurer must provide coverage." Appellant's Sr. at 27.
Page 760
130 Grange responds that,although no Washington case has.yet recognized: the tort of
interference with expected inheritance, the tort is a logical extension of Washington's already-
recognized cause of action for tortious interference with an economic relationship. That tort
requires a showing. of ihtentiona1.conduct. Grange cites as authority the jurisdictions that. have
adopted the tort of interference with expected inheritance. Those cases hold this tort is equivalent
to a claim for tortious interference with an economic relationship. Grange claims the same.logic
applies to a minor child's claim of tortious interference with a parent -child relationship, a tort
requiring intentional conduct. According to Grange, requiring a claimant to establish intentional
conduct in the. context of an adult. child's interference claim is a log i cal. extensio n of Washington's
rule applicable to a minor child's claim.
131 Roberts " concedejs] that the overwhelming majority, and perhaps all, jurisdictions 1320 P act
90] which have considered the two tortious interference .claims. (inheritance, adult. child/pa rental
relationship) require an intentional act. "Appellants Reply Br. at 8 -9. Nevertheless, Roberts claims,
Unless and until a published Washington case sets forth the elements of the untested
interference claims,.the elements of those claims remain uncertain and " uncertainty with respect
to coverage must be resolved in favor of the insureds." Appellant's Reply Br, at 9.
Interference with Expected inheritance
¶ 32 No Washington case has adapted the tort of interference with expected inheritance, although
other.jurisdict "ions have recognized this tort or extended the tort of interference with. a business
expectancy to include inheritance.expectancy. Washington recognizes the.tort of interference with
a business or economic expectancy., which consists of five elements: (1) existence of a valid
contractual relationship or business expectancy, (2) defendants had knowledge of that
relationship, (3) intentional. interference.
Page 76.1
inducing or causing a breach or termination of the relationship or expectancy, (4) defendants
interfered for an improper purpose or used improper means, and (5) resultant damage. Leingang
v. Pierce County Med. Bureau, Inc., 131 Wn,2d 133, 157, 930 P.2d 288 (1997); see also 6A
Washington Practice: Washington Pattern Jury Instructions: Civil 352.02, at 477 (6th ed. 2012).
Particularly important here, the tort requires intentional interference.
¶ 33 Multiple jurisdictions have adopted tortious interference with an:expected inheritance and
have uniformly.held that the tort is equivalent to tortious interference with an economic
relationship. See Lindberg v. United States, 164 F. 3d 1312, 1319 (10th Cir. 1999) (" The elements
of the tort [of intentional interference with inheritance] are quite uniform across jurisdictions that
have recognized it."); Allen v. Hall, 328 Or. 276,. 282, 974 P.2d 199 (1999) i" Ultimately, .an
expectancy of inheritance is an interest that fits by logical extension within the concept underlying
the tort of intentional `interference with prospective economic advantage and, absent some
legitimate reason for excluding it, may be. deemed to be covered by that.theary of recovery."
Sonja R. Soehnel, Annotation, Liability in Damages for Interference with Expected Inheritance or
Gift; 22 A.L.R.4th 1`229, § 3 (1983 & Supp. 2013). (summarizing cases).
134 Further, the Restatement (Second) of Torts describes " Intentional interference with
Inheritance or Gift" and lists cases in jurisdictions that recognize this.tort. See Restatement.
(Second) of Torts § 7748 (1979). The Restatement and those jurisdictions recognizing the tort .
agree that this is only an intentional tort and thatit " does not purport to cover liability for
negligence Restatement: (Second) of Torts §. 7748 curt. a; Allen, 328 Or. at. 282=85; Harmon
v. Harmon, 404`A.2d 1020, '1024 -25 (Me., 1979); Peffer v; Bennett, 523 F.20 1:323, 1325 (10th Cir.
1975); Allen v. Leybourne; 190 So.2d 825, 828 -29 (Fla. Dist. Ct. App. 1966 ).. No jurisdiction has
adopted a tart of negligent interference with an inkier €tance: See Cardenas v. Schober, 783 A.2d.
317, 324 n.2.(Pa. Super; 2001).
Page. 762
136 Roberts agrees that Grange's policy excludes defense coverage for intentional torts but
contends that because Washington has not yet recognized tortious interference with expected
inheritance, we cannot. be sure what its elements would be. Roberts claims that given this "
uncertainty," Grange cannot rely on out -of -state .authority to refuse a defense.. Appellant's Br. at
27:
136 Our Supreme Court has rejected the argument that an insurer may refuse to defend based on
its own interpretation of Washington case law. In Woo,.the insurer relied on a formal written legal
opinion by attorney Stephen G. Skinner, who advised. that the insurer had no duty to defend based.
on two Washington Court of Appeals cases. Woo, 161 Wn:2d at 60. Skinner's opinion
acknowledged, however, that neither case was entirely on point and that a reviewing court might
conclude they apply only in other contexts: Woo, 161 Wn.2d at.60, Our Supreme Court
disapproved of the insurer's reliance on this" equivocal "legal' advice:
[The ipsurer's].reliance.on Skinner's equivocal advice regarding. the application of [the Court of
Appeals cases] to this case flatly contradicts one of the most basic [320: P.3d 91] tenets of the
duty to defend.. The duty to defend arises based on the insured's potential for liability and whether
allegations in the complaint could conceivably Impose liability on the insured. Truck Ins., 1.47
Wn.2d at 760. An. insurer is relieved of its duty to defend only if the claim alleged in the.cdmplaint
is" clearly not covered by the policy:" 1d. Moreover, an ambiguous complaint must be construed
liberally in favor of triggering the duty to defend. 1d. [The insurer] is essentially arguing that an
insurer may rely on its own interpretation of case. law to determine that its policy does not cover
the. @..I leg at'ions in the complaint and, as a result,. it has no duty to defend the insured. However, the
duty to defend. requires an insurer to give the insured the benefit of the:doubt when determining
whether the insurance policy covers the allegations in the complaint. Here, [the insurer] did the
opposite - -it relied on an equivocal interpretation of case law to give itself the benefit of the doubt.
rather than its insured.
Woo., 161 Wn.2d. at 60:
1137
Page 763
in Alea, our Supreme Court considered out -of- state authority when determining whether an insurer
had a duty to defend. There, the insurance policy excluded "assault and battery" from the
insurer's duty to defend. Alea; 168 Wn.2d at 406. The issue was whether postassault negligence
by the insured's employees gave rise to a duty to defend. Alea, 16.8. Wn.2d at 407. Because
Washington courts had not yet considered this factual scenario, the. court turned to out -of -state
authority. Alea,. 168 Wn.2d at 407 -08. The court recognized that [m]any states have found a
preassaultlpostassault distinction in analyzing 'assault and battery' exclusions." Alea, 168 Wn.2d
Pt 407. After analyzing the out-of-state authority, the court recognized a " pattern of holding an
insurer to a duty to defend in the case of postassault negligence ... ." Alea, 168 Wn.2d at 408. As
to its reliance on out =of -state cases, the court reasoned:
[The insurer] contends that persuasive out- of-state precedent should not trump binding in- state
law.. We agree. However, as the Court of Appeals noted., Washington courts have yet to consider
the factual scenario before us today. Evaluation of out-of -state cases was appropriate in deciding.
which.rule.to apply, The la&:of any Washington case directly on point and a recognized distinction
between preassault and postassault negligence in other states presented a legal uncertainty with
regard to [the insurer's] duty. Because.any uncertainty works in favor of providing a defense to an
insured, [the insurer's] duty to defend arose when [the underlying plaintiff] brought suit against [the
insured].
Alea, 168 Wn.2d at 408.
¶ 38 The court also analyzed several cases cited by the insurer and "disagree[d] that any causal
connection whatsoever between an assault or battery and subsequent negligence would suffice to
render the resultant injuries'clearly not covered: "' Alea, 158 Wn.2d at 408 -09. The court
concluded:
Page 764
[The insurer's] interpretation of Washington law fails to persuade us that its interpretation of the
contract is correct. We find persuasive precedent from other states that have found claims that the
insured acted negligently after an excluded event are covered.. Further, a. balanced analysis of the
case law should have .revealed at least a legal ambiguity as to the application of -an " assault and
battery'` clause with regard to postassault negligence at the time [the insured] sought the
protection of its insurer, and ambiguities in insurance policies are resolved in favor of #lie insured.
Because.such ambiguity is to be resolved. in favor of the insured, we hold that [the insurer's] policy
afforded coverage for postassauit negligence to the extent it caused or enhanced [the underlying
plaintiff's] injuries..
Alea, 1,68 Wn.2d at 41.0-11 (citations omitted).
139 Under Alea,. when Washington authority is silent regarding a particular claim or cause of
action, courts may consider persuasive authority when determining an [320 P.3d 921 insurer's duty
to defend. Alea did not end its duty to defend .analysis when faced with a novel tort claim. The
court analyzed. persuasive authority, discerned a trend, and imposed a.duty to defend based on
the existence of that trend and the lack of any Washington guidance.. Alea held that the persuasive
authority conflicted With the insurer's position,. creating a legal uncertainty that triggered the duty.
The court so held because the persuasive authority on which the insured relied showed that
coverage could be triggered if Washington followed the trend established by the other jurisdictions.
We are unpersuaded by. Roberts's argument that the duty to defend triggers whenever a claimant
alleges a novel tort theory.
140 Unlike in Alea, here, the persuasive authority supports the insurer's denial of the duty to
defend. Roberts cites no authority to the contrary and concedes that " the overwhelming majority,
and perhaps all, jurisdictions" recognizing this tort require an intentional act. Appellant'.s Reply Br.
at 8. No legal. uncertainty or ambiguity exists that requires construction in favor of the insured. To
prevaii.on
Page 765
the interference claim, Brandis must prove intentional; not accidental, conduct. Further, Brandis
made no allegation that Jane accidentally committed the tort. Brandis.alleged that .harm resulted
from Jane's acts of "'fraud, undue influence, and tortious interference." Read liberally in the
context of the entire complaint, these allegations involve intentional or deliberate conduct..
Because.the Grange policy excludes intentional conduct,. the. trial. court properly concluded that no
duty to defend Roberts extends to Grange.
Tortious Interference with Parent -Child Relationship
141 Alea also controls the. resolution of this. claim. While no Washington Supreme Court case
precisely recognizes a cause of action for malicious interference with family relations, [7] we.have
dealt with a minor child's claim in Waller v. State, 64 Wn.App. 318, 338, 824 P.2d 1.225 (1992).
There, we identified 2 "trend in the law" that began with our decision in Strode v. Gleason, 9
Wn.App. 13, 519. P.2d 250 (1973). The elements of. a claim for tortious interference with a parent
child relationship are (1) the existence of a family relationship, (2) a wrongful interference with the
relationship by a third .person, (3) an I ntention on the part of the third person that such wrongful
interference results 'in a loss of affection or family association, (4) a causal connection between the.
third parties' conduct and the loss of affection, and. (5). that. such conduct resulted in damages.
Waller., 64 Wn.App. at 338 (citing Strode, 9 Wn.App. at 14 -15). The intent element cannot be met .
by merely showing reckless conduct. Instead, as we explained in Waller, intent in the context of an
alienation of affections claim requires the plaintiff to prove. malice- -that. is, an intent that [the
Plaintiff] lose the affection of his or her family. Waller, 64 Wn.App. at .339.
Page 766
142 Roberts claims that Washington has not yet recognized a cause of action fortortious
interference with a parent -child relationship in the context of an adult child and argues without
citation to authority that such." [u]ntested torts should trigger a duty to defend." Appellant's Reply
Br. at 8 (boldface omitted). In addition to our discussion above, we note that Roberts provides no
argument or citation to authority explaining why Washington would. apply a different standard when
the tort is committed against an adult child To the contrary, our courts have refused to. distinguish
between adult and minor children when analyzing other torts. See Upland v. Reynolds Metals. Co.,.
193 Wn.2d 131., 132,139-40, 691 P.2d 199 (1984) (holding that children have a separate cause of
action for loss of parental consortium when a parent is injured through the negligence of another
and refusing to limit recovery for loss of parental consortium to minor children dependent on the
parent), Kramer v. Portiand- Seattle Auto Freight, Inc., 43 Wn.2d 386, 397, 261 P..2d 892 (1953)
[320 P.3d 931 (allowing. a child in wrongful death action to recover for loss of parental consortium
beyond. the period of minority).
143 The tort:of interference with. aparent= chiId. relationship cannot be committed accidentally or
negligently. Further, as discussed above, Brandis did not allege accidental conduct. Brandis
claimed that ,lane' actively interfered" and " intentionally inter fere(d]" with their relationships.
These allegations encompass deliberate, intentional action. I81 The trial court. properly concluded
that no duty to defend Roberts against such allegations extended to Grange.
Page. 767
Defamation
1 44 Roberts argues that Brandis's defamation allegation [9] falls within Grange's policy coverage
for personal and advertising injury. Grange contends that the knowing violation of rights`of
another" and " material published with knowledge of falsity" policy exclusions apply. RespTs Br. at
17 (capitalization omitted).
¶ 45•Defamation is concerned with compensating the injured party for damage to reputation.
Eastwood 'v. Cascade Broad. Co., 1:06 Wn.2d 466, 471, 722 P.2d 1.295 [1986]. 1 -1.defamation
Plaintiff must show four essential elements: (1) falsity, (2) an unprivileged communication, (3) fault,
and 4) damages. Demopolis v. Peoples Nat'l Bank of Wash.; 59 Wn.App. 195, 108,196 P.Zd 426
(1990). " The burden of. proof on the element of fault depends on the nature of the defamed party:"
Demopolis, 59 Wn.App. at 108 n.1. When the defamed party is a public figure or public official, he
or she must show that the defamatory statement was made with actual malice- -that is,, made. with "
actual knowledge of its falsity or with reckless. disregard for its truth or falsity." Herron v. KING
Broad.. Co..,. 1.12 Wn.2d 762, 775, 776 P.2d 98
Page 768
(1989): if the defamed party is .a private figure, only negligence need be shown. Demopolis, 59
Wn.App. at 108 n.1... In the defaration context, negligence means that the defendant "'knew or, in
the exercise of reasonable care, should have known that the statement was false or would create.
a false impression in some material respect.`" Maison.de France, Ltd. v, Mars Dui ►, Inc., 126
Wn.App. 34, 44, 108 P.3d 787 (2005) (quoting Vern Sims Ford Inc. v. Hagel, 42 Wn.App. 675,
6801 713 P.2d 736. (1985) ).
¶ 46 As discussed above, the complaint. alleges:
Jane actively interfered with the relationship between Elizabeth and her family and friends,
including her other children. ,lane made false statements about and " badmouthed"
[320 P.3d 94]
those other parties in order to so intentionally interfere with their relationships. Jane's behavior
towards. the other family members, including making false accusations. regarding prior child abuse
claims, went beyond the bounds of decency, atrocious, and intolerable.
Roberts first contends that Grange's " Knowing Violation of Rights. of Another" exclusion
does not apply. That provision excludes personal and advertising injury" (cjaused by. or at the
direction of an insured with the knowledge that the.act would violate the rights of another and
would inflict personal and advertising injury. " Roberts argues,.
The exclusion does not apply. The.underlying Complaint does not allege that Mrs. Roberts knew
both that her alleged defamation would violate the rights of another and would slander Brandis. At.
most, the Complaint urges that lobs. Roberts " actively" and " intentionally "interfered with
relationships by " badmouthing" the underlying plaintiffs. Grange casually applies the Brandis
allegation of intentionality to the slander, but the. Complaint itself only references the intentionality
with. respect to the charge of interference with relationships.
Appellant's Br. at 19 (citations ornitted); see also Appellant's Reply 6r. at. 1 a. Roberts thus
contends that because the complaint does not allege Jane acted. intentionally in making
Page 769.
false statements and "badmouthing" the, other parties, the defamation c[aim, construed liberally,
conceivably alleges negligent rather than intentional con..duct.
¶ 47 For similar reasons, Roberts. also. contends that: Gra nge's, exclusion. for " Material Published
With Knowledge 0f Falsify" does not apply. That provision excludes personal and advertising
injury " I.a]rising out of oral or written publication of material, if done by or at the direction of an
insured with knowledge of its falsity." Roberts argues that the complaint fails to allege that she
knew her alleged statements were. false. Thus, a negligence standard applies.
148 The complaint, read liberally .in its entire context, alleges intentional and deliberate conduct.
As to the defamation claim, the complaint alleges that Roberts made false. statements about the
other parties that went beyond the bounds of decency " in order to so intentionally interfere with
their relationships." The complaint states no prima facie claim of negligence and solely refers to
intentional, deliberate conduct, To state a.claim for negligence, the underlying complaint must
allege facts that support a conclusion that the conduct was negligent: See Mcleod v. Grant
County Sch. Dist. No. 128, 42 Wn.2d 316, 319, 255 P. 20 360 (1953) ( " In order to state a cause
of action for negligence, it is necessary to allege facts which would warrant a finding that the
defendant has. committed an unintentional breach of a legal duty, and that such breach was a
proximate cause of the harm:" ). The. complaint states no such. facts. Read in content, the
complaint alleges only intentional torts and, thus, Roberts's. knowledge of the falsity of her
statements maybe implied. See Margoles v. Hubbart, 1.11 Wn.2d 195, 21.5; 760 P.2d.324 (1988)
" evidence of hostility or spite is clearly relevant" in determining Whether defamation defendant
acted with knowledge of falsity).
149 Further, the allegation of intent and calculation to injure (" in order to so intentionally interfere"
} implies that regardless of whether Roberts knew her statements were
Page 7`70
false,.she made the statements knowing that B rand is's.rights would be violated and that personal
.and advertising injury would occur. The complaint alleged more than merely false statements. It
alleged that Roberts made false statements for:a specific tortious purpose: Relevant here, the
policy defines personal and advertising injury as " injury ,.. @rising out. of ... [o]ral or written
publication, in any manner, of material that slanders or libels a person 1101 The complaint
clearly alleges that the injury arising out of Roberts's false statements was intentional interference
irr Brandis's family relationships..
[320 P. 3d 95] Read in context,. the complaint alleges conduct indicating that Roberts intended and
knew that her statements would cause interference in Brandis's personal relationships (thus
violating Brandis's rights). Under the policy's plain language, this interference injury is personal
and advertising injury" because it arose from a statement that allegedly slandered Brarid is, i:e:,
tended] to injure the reputation of a person referred to in it," Black's Law Dictionary 449 (8th ed.
.2004), Under the facts alleged, Roberts intended the statements to injure Brandis's reputation with
respect to their mother and intended the damaged reputation to result in relationship injury..
Grange's policy excludes such conduct from the duty to defend. j11] The trial court properly
granted summary judgment on the defamation claim.
Page 771.
Separate Versus Community Liability
150 In her reply brief, Roberts contends for the first time that Grange's policy applies separately to
each insured. Roberts.contends Grange owes: Roberts a defense. becau se. the complaint alleges
tort ious conduct committed by.only Jane. Roberts; acid which benefited her own separate property.
161 An appellate court " may refuse to review any claim of error which was not raised in the trial
court:" RAP 2.5(a); Roberson v. Perez, 156 Wn:2d 33, 39, 123 P.3d 84.4 (2005 ). Further, we do
not consider issues argued for the first time in the reply brief. In re Marriage of Sacco, 114. Wn.2d
1,51784 P. 2d 1266 (19.90). The reply brief is limited to a response to the issues in the responding
brief. To address issues argued far the first time in a reply brief is unfair to: the. respondent and
inconsistent with the rules on appeal. RAP 10.3(c); State v. Hudson, 1244 Wn.2d 107, 120, 874
P. 160 (1994) . We therefore: decline to consider this argument.
Dismissal of Counterclaim.
¶ 52 Roberts contends the court erred in dismissingthe bad faith counterclaim, As discussed
above, over a year after the trial court granted summary judgment in Grange's favor,. it entered an
order formally dismissing Roberts's bad faith: counterclaim. The court dismissed. the. counterclaim
Page 772.
after a. hearing on Grange's motion to clarify the summary judgment order..At the hearing, Grange
requested that the court enter an order nunc pro tune dismissing Roberts's counterclaim as of July
22,.2011, when Grange's summary judgment motion was granted and Roberts's motion to stay- -
based on the same grounds as the counterclaim - -was implicitly denied: Roberts opposed
Grange's motion, arguing that the request for a. nuns pro.tunc order was simply a gambit. to deny
Roberts. the opportunity to appeal. When the court asked Roberts's counsel, " On.what basis can
your claim of bad faith go forward," counsel responded,
[320 P3d 96]
I am not prepared to argue whether there is a basis or not, but I will assume for the purposes of
this argument that the.counterclaim cannot.go forward. The question is whether or not the Court
has dismissed the counterclaim or riot. I could enter into an agreed order today that the
counterclaim is dismissed, and I would.have no problem doing that..What I have a problem with'. is
the suggested. language in Grange's order which seems to provide for a retroactive dismissal of
the counterclaim and, therefore, the entire case with finality which is an attempt to preclude my
clients from appealing the order on summary judgment. The fact is that an appeal lies when a final
judgment has been entered. Final judgment. has not been entered, and, therefore, I would ask that
.your court deny their form of the order. And I would be happy to work with counsel on an agreed
order on the counterclaim as of today's date.
RP (Sept. 21, 2012) at 4 -5.
153 Counsel and the court then engaged in the following. discussion:
[COUNSEL]. The prejudice is the loss of the right to appeal..:.. Grange could have and should
have,. perhaps; asked the Court to dismiss the counterclaim. It did not. The counterclaim simply
wasn't dismissed. There's nothing in this record Indicating that it was, .in fact, dismissed except for
a logical and.
Page 773
legal conclusion that because the summary judgment was granted, therefore, logically, and by
necessity, the counterclaim could not stand. But that is not a logical THE COURT. Isn't that farm
over substance, though? Isn't that. just putting form over substance, something that even OR 1
guides us not to. do. [COUNSEL]: Of course not. I don't. believe so. THE COURT: Nothing exists in
the counterclaim. [COUNSEL]: And you can sa find right now. THE COURT:.It didn't exist as of
July of 2011: [COUNSEL] But the. Court did not find that as of:July 201.1. THE. COURT: II found it
by implication. I found it by application..... THE COURT: I am not prepared. to enter an order nuns.
pre tune amending a July order. I think we would-- I'm.prepared to take her up on her offer that the
matter. is dismissed. The counterclaim. Or else.I can sign an order denying the.clarification and
leave this thing open. Frankly, I think they're going to be hard-pressed. to convince the Court of
Appeals that they have:any appellate rights on a claim that hasn't existed by operation of law.
.RP (Sept. 21,. 2012) at 7 -9. Counsel indicated she vvo.uld be" happy if the Court formally
dismissed the counterclaim." RP (Sept. 21, 2012) at 9. The court then entered an order formally
dismissing the counterclaim.
164 On appeal, Roberts claims that because the trial court's dismissal order articulates no basis.
for its decision,." [tjhe inference is that the trial court concluded that a counterclaim for bad faith
could not proceed where the Insurer prevailed in the coverage actiion.." Appellant's Ear. at 39.
55 The record indicates Roberts. never presented argument or evidence to the trial court
regarding why the counterclaim had. merit or should not be dismissed. See Clerk's Papers 281 -85
(Roberts's response to Grange's motion.
Page 774
for clarification }. The September 21, 2012 hearing transcript clearly shows that the issue raised at
the hearing was whether the counterclaim was formally dismissed for appeal purposes. Even
when prompted by the court, Roberts gave no basis for allowing the.bad faith counterclaim to go
forward. Roberts's counsel clearly asked the court to formally dismiss the counterclaim so that
Roberts could appeal the summary judgment order. The court noted it could either dismiss the
counterclaim or leave it open, to'which counsel responded, "Yd [be] happy if the Court formally
dismissed the counterclaim." RP (Sept. 21, 2012) at 9. Roberts did not ask the court to leave the
matter open., consider the counterclaim's merits, or address it other [320 P.3d 97] than to dismiss
it. Roberts also failed to refute Grange's argument that when the court denied, the motion to stay, it
" implicitly found that. the factual basis for the counterclaim wasn't true." RP (Sept. 21, 2012) at 8.
¶ 56 We " may refuse to review any claim of error which was not raised in the trial court.." RAP
2.5(a); Roberson,. 156.Wn2d at. 39. Roberts raised none of her. appellate arguments at. the trial
court's dismissal. hearing, and we can.decline to consider them on appeal. Roberts also
specifically asked the court to formally dismiss the counterclaim rather than keep the claim open.
Under the invited error doctrine, a party may not set up an error at trial. and then complain of it on
appeal. In re Pers. Restraint of Thompson, 141 Wn.2d 712, 723, 10 P.3d 380 (2000). The doctrine
applies when a party takes affirmative and voluntary action that induces the trial court.to take an
action that party later challenges on appeal. Thompsar(4.141 Wn.2d at 723- 24..Roberts cannot
complain that the trial court dismissed the counterclaim for the "wrong reason when she.(1)
affirmatively asked the court to dismiss the claim rather than keep it open and (2) failed to argue
the.
Page 775
merits of the claim when prompted by the'court. [12] We decline. to address the counterclaim's
merits.
Attorney Fees and Costs
167 Roberts request an award of attorney fees and. costs on appeal, citing RAP 18.1 and
Olympic Steamship Co. y. Centennial Insurance Co., 117 Wn..2d 37, 52 -53, 811 P.2d 673 (1991).
Olympic Steamship prvvides.that an insured successfully .suing an insurer to obtain coverage may
also recover reasonable attorney fees necessarily incurred in the endeavor. See .McRory v. N. Ins.
Co. of N, Y., 1.38 Wn.2d 550, 980 P: 2d 736 {1.999} (quoting Olympic S. S.., 117 Wn.2d at 52 -53).
Given our disposition, we deny Roberts's request for appellate attorney fees and costs..
CONCLUSION
158 Because the Brandis complaint, construed liberally, alleges no claims conceivably covered by
the insurance. policy Grange issued to Roberts, Grange had no duty to defend Roberts in. the
underlying action. We affirm summary
Page 775
judgment dismissal and deny Roberts attorney fees and costs on appeal.
Becker.and Dwyer, JJ,, concur,
Notes:
]We.. refer to Jane and Wes collectively as" Roberts_"
j2JWe refer to these sisters collectively:. as." Brandis. "
1311 January 2011, attorney Helfer requested that Grange delay its declaratory judgment action so.
that a planned motion for summary judgment in the underlying action could be heard. Grange
agreed and delayed prosecution of its declaratory judgment action. until after the underlying motion
for summary judgment was heard.
141Grange contends that collateral estoppel bars this:appeal because Unigard subsequently
obtained the same.order as did Grange and Roberts failed to appeal that order. The details of the
Unigard claim are not in the record on appeal. The parties conveyed only limited information to the
trial court regarding the Uni.gard litigation. See Clerk's Papers at 368 -69 (Roberts's. declaration
stating that Unigard defended. under a reservation of rights and brought a summary judgment
motion against them in June 2012); 376 tin its motion for clarification, Grange informed the trial
court that Roberts, in response to Unigard's motion for summary judgment, asserted that the
Grange litigation was not complete because Roberts's counterclaim against Grange had not been
dismissed); RP (Sept. 21, 2012) at 3 (during oral argument on motion for clarification, trial court
was advised that Unigard was no Longer providing coverage).
Collateral estoppel, also known as issue preclusion,. bars relitigation of issues of ultimate fact that
have been determined by a final judgment in actions involving the same parties. State v. Williams,
132 Wn.2d 248, 253 -54, 937 P.2d 1.052 (1997). Collateral estoppel must'not be applied to work an
injustice. " The question is always whether the party to be estoppel had a full and fair opportunity
to litigate the issue." State Farm Mut..Adto. Ins. Co. v. Avery, 114 Wn.App. 299, 304; 57 P.3d 300
(2002). On this limited record, we. cannot determine that Roberts had a full. and fair opportunity to
litigate the coverage issue in the Unigard case.
t6lConduct is " reckless" when a person knows of and disregards a substantial risk that a
wrongful act may occur and his: or her disregard of such substantial risk is a grass deviation from
conduct that a reasonable .man would exercise in the same. situation." RCW 9A. 08.010(1.) M.
Negligent infliction of emotional distress is a: limited., judicially created cause. of action that allows a
family member to recover for " foreseeable" intangible injuries caused by viewing a physically
injured loved one shortly after a traumatic %accident. Colbert v. Moornba Sports,. lnc:, 163 Wn.2d
43, 49; 176 P.3d 497 (2008 ).. No party argues that Brandis alleged negligent infliction of emotional.
distress in the underlying complaint.
161The Daley court concluded the term " bodily" modifies the other terms in the definition of " bodily
injury." Daley, 135 WUd at 7$7.
17]1n Tyner v. Department of Social & Health Services, 141 Wn.2d. 68, 1 P. 1148 X2000), our
Supreme Court permitted a parent to sue the state for. damage to the parent child relationship.
[8]As persuasive authority, see Drake v. Mutual of Enumclaw Insurance Co., 1.67 Or.App. 475, 1
P.3d 1065 (210100), which addressed facts remarkably similar to those in the present case.. In
Drake, the insureds (husband and wife) were sued by the wife's sister, who alleged that the
insureds exerted undue influence over the wife's mother such that the mother disinherited the
sister. Drake, 167 Or.App. at 477. The insurer; Mutual of Enumclaw, rejected the insured's tender
of defense. Drake, 167 Or.App. at 477. The insureds sued for a judgment, declaring that Mutual
had. a duty to defend . them, and Mutual moved for summary judgment, arguing that the insureds'
claims "alleged only intentional conduct and, therefore, did not allege an'occurrence' under the
policies." Drake, 167 Or.App. at 477. The trial and appellate courts agreed with Mutual. In
affirming, the. 0. regon Court of Appeals invoked the rule of inferred intent:
Thus; even if it. were theoretically possible to commit the civil wrongs of undue influence, breach of
fiduciary duty, and interference with economic relations without intending to injure another person,
allegations concerning the manner in which those wrongs were committed by plaintiffs may require
the inference that harm was intended....
The claim for undue influence makes. clear that plaintiffs intended to injure [the sister].
Drake, 167 OY.App. at 482.
[9]We question whether Brandis's complaint adequately states a claim for defamation. While
Brand is alleges that Jane made "false statements" and " false accusations" and " badmouthed"
them, Brandis's request for relief mentions no defamation claim and requests no judgment for
damages based on such a claim. See Ralph v. Dept of Natural Res., 171 Wn.App. 262, 266, 28.6'
P. 3d 992 (201.2), review granted, 176 Wn.2d 1024 (2013) ( "'The nature of a claim for relief is
determined by the facts alleged in the complaint and as adduced thereunder, and by the relief
requested .'" (emphasis added) (quoting Silver Surprize, Inc. v. Sunshine Mining Go., 74 Wn.2d
519, 522; 445 P.2d 334 (1368))).
0 01 Black's Law. Dictionary defines " slander" as" [a] defamatory assertion expressed in
speech." Black's Law Dictionary 1421 (8th ed. 2004). It defines " defamatory statement" as " [a]
statement that tends to injure the reputation of a person referred to in it." Black's Law Dictionary at
4.49.
[11] Woo, discussed above, does not require a different result. There, regarding the policy's
general liability provision for bodily injury., the dentist argued that the plaintiff s. complaint'' should
be construed liberally in his favor as triggering a. duty. to defend because the complaint alleged
both intentional and negligent conduct resulting in, bodily injury." Woo, 161 Wn.2d at 63.. The
complaint alleged. conduct that was " likely intentional" but also alleged three negligent causes of
action. Woo; 161 Wn.2d at 64. The court relied heavily on the specific' bodily injury policy exclusion
language requiring that the dentist intend both the event or happening of photographing the
plaintiff with boar tusk flippers but also the injuries that resulted, and concluded that under the
facts alleged, it was conceivable that the dentist did not intend his conduct to result in the plaintiffs
injuries. Woo, 161 Wn.2d at 64:
Regarding the insurance policy's " [e]rnployment practices liability provision.,`' Woo. claimed that
Fireman's had a duty to defend because the plaintiffs complaint could "reasonably be. read to
include allegations of negligent acts that led to an involuntary or constructive discharge." Woo, 161
Wn.2d at 61. The court disagreed, concluding that the facts. alleged did not meet the definition of
wrongful discharge under the insurance policy. Thus, " Fireman's had no duty to defend under [the
dentist`s] employment practices liability provision because [the plaintiff's] complaint clearly:did not
allege actions that met the definition of wrongful discharge under the policy." Woo,. 161 Wn.2d at
62.
Unlike in Woo, here, the complaint contains no negligent causes of action and cannot reasonably
be interpreted to include allegations of negligent acts. Our determination is heavily dependent on
the precise wording of the policy, as was the determination in Woairiterpreting different policy
language). On these facts, Grange owes no duty to defend.
[12]Roberts cites Lavigne v. Chase, Haskell, Hayes &.Kalaimon, PS, 11.2 Wn.App. 677, 50 P.3d
305 (2002), to argue that she did not" set up" an error. There, the respondent argued that the
appellant invited dismissal when it conceded to the trial court that an adverse evidentiary ruling "
'eviscerated "' its. Case and that summary judgment was appropriate. Lavigne, 112 Wn.App. at 681.
We held that the invited error. doctrine did not apply in those. circumstances:
The doctrine does not apply here because [appellant] did not" set up" an error.,When the verbatim
of the summary judgment hearing is viewed in context, it is apparent [appellant] felt compelled by
the trial court's negative evidentiary ruling to g along with resolution by summary gudgment.
[Appellant] did not concede the merits of its. case, and the trial court agreed. on that point. it would .
be unfair to characterize [appellants] counsel's exasperated comment that the trial court's
evidentiary ruling" eviscerated" [appellant:s] case as constituting a waiver of the merits of their
case.
Lavigne, 112 Wn.App. at 582.
The facts here are different. Roberts clearly asked the court to dismiss. the counterclaim so she
could appeal the summary judgment ruling; Roberts affirmatively chose not to.present the
counterclaim's merits and declined the trial court's offer to keep. the matter open. This constitutes
invited error.
129 Wn.2d 320 (Wash.. 1996), 63079 -8, Presidential Estates Apartment Associates v. Barrett I * *1
div.cl {text - align: center} r *1
Page 320
129Wn.2d 3"24 (Wash. 1996)
917 P.2d 100
PRESIDENTIAL ESTATES APARTMENT ASSOCIATES, a Washington
Joint.Venture, and Stanley V. Piha, Managing Joint .
Venturer, Respondents,
V.
William E. BARRETT and Sally T. Barrett, husband and wife,.
Robert V. Yeakel and Fern L. Yeakel; husband and
wife, and Barrett - Yeakel, a Washington
general partnership, Petitioners.
No. 63079 -8.
Supreme Court of Washington,..En Banc.
May 30, 1996
Argued February 8, 1996.
Page..101
Page 321
Gordon, Thomas & Honeywell, John C. Guadnola, Tacoma, for petitioners.
Sternberg, Thomson & Okrent, Terry E. Thomson, Seattle, for respondents.
ALEXANDER, :Justice.
Relying on Civil Rule 60(a), which authorizes a trial court to correct a "clerical error," (1j the
trial court entered an amender[ judgment, stating
Page 322
that the original judgment was. in error to the extent it did not reflect its intention regard ing`two
issues. The Court of Appeals reversed, concluding that the amended judgment did not remedy a
clerical. error, but instead: dealt with what the Court of Appeals considered to be "judicial errors,"
which are not correctable under CR 60(a). Thus, on. review we must decide whether a trial court
may, pursuant to CR. 59(a), amend a judgment to reflect its previously unexpressed intent, and, if.
so, under what circumstances. We affirm the Court of Appeals in part and reverse it in part.
In 1991., the Barrett - Yeakel partnership built the Colonial Commons ll apartment (917 P.2d
142] complex on a landlocked parcel in King County. The land on which the complex was built
was benefited by a 39Q- foot -long easement along the edge of an adjacent parcel of property on.
which is located. Presidential Estates Apartments. The easement provides the benefited party.
Barrett - Yeakel, with "ingress and egress and for utilities for a total of up to sixteen. (16) living
units." 12j Stipulation, &derand J. for Prescriptive Easement, Pls.' Ex: 5 at 2.
The litigation leading to this appeal began when the Mari bar Group, the then - owners of the
Presidential Estates Apartments, commenced an action in King County
Page 323
Superior Court to enjoin what it contended were four encroachments by Barrett - Yeakel onto its
Property:
1. The connection of the Colonial Commons ll: storm water system to that of Presidential Estates
Apartments' storm water system.
2. Use of the easement for access for 18.living units, instead of the authorized 16 .units.
3. Use: of the access for 20 storage units, when. access for none is authorized.
4. Use of 548 feet of the 'Presidential Estates. Apartments' property for additional access, instead
of the authorized 39.0 feet.
Pls.' Trial Br., Clerk's Papers at 54 -55.. Prior to trial, the Mari bar Group sold its interests in the
adjacent property to Presidential Estates Apartment Associates (Presidential), which was
subsequently substituted as plaintiff.
After a trial. to the court, the trial court found that Barrett- Yeakel had encroached. upon
Presidential's property in the four ways claimed. Although it concluded that each of the
encroachments. should be enjoined, the trial court also concluded that, "sitting in equity," it would
fashion "an alternative remedy," as follows:
I am enjoining, as I've. indicated, the four encroachments. But as it.relates to the encroachment.
concerning the additional two units only, I am going to give ... the ability of the defendants to use
the easement for the two additional spaces, provided [Barrett - Yeakel pays Presidential] $22,500
within 30 days.
Report of Proceedings. at 276, :277. The trial court entered written findings of fact, conclusions
of law, and a judgment consistent with its oral ruling. Barrett - Yeakel then. paid. $22.,500 to
Presidential.
The time for appeal passed without an appeal haying been takers by either party. Shortly
thereafter, however, Presidential contacted a. City of SeaTac fire inspector, and,.
Page 324
using the judgment as support, asserted that it.was within its rights to prevent access by vehicles,
including emergency vehicles, beyond the 390 foot easement to the more. southerly of the two
entrances to Colonial Columns 11. Thus iit..contended that Barrett - Yeakel was in violation of
SeaTads fire code. [3] This prompted. Barrett - Yeakel to petition the judge who had presided at the
trial at which the encroachments had been [917 P.2d 143] enjoined, for clarification of the
judgment, pursuant to CR 60(a). [4] The trial judge granted Barrett- Yeakel's motion, ruling that, in
addition to.granting ingress. and egress for 18 living units, he had intended to allow Barrett- Yeakel
to (a) have the driveway to Colonial Commons ll's southern entrance available for emergency
access, and (b) lay a storm water drain pipe under the 390- foot.easement. The trial court then
entered an amended judgment to reflect what it said was its original intent.
Presidential appealed to the Court of Appeals, Division 1, which reversed the trial court. The
Court of Appeals rejected. Barrett - Yeakel's argument that the amendment was. merely a correction
of a clerical error; concluding instead that "the omissions from the original judgment were not
merely mechanical mistakes," but rather were "substantive changes to the original decision" which
gave Barrett - Yeakel "additional benefits [that are] absent from the original record .... which
significantly alter[] the original judgment." Presidential Estates Apartment Assocs. v.
Page. 325
Barrett, No.. 32689 -9-i, slip op. at 4; 5.(Apr. 24, 1995). on Barrett- Yeakel`s motion, we granted
review.
Barrett- Yeakel contends that. the Court of Appeals erred in reversing the. trial court's order
amending the judgment enjoining the encroachments. In support of its contention, Barrett - Yeakel
argues that the trial court did not abuse its discretion in entering the order amending judgment
pursuant to CR 69(a) because it merely brought the judgment into conformity with its original
intent. In that regard, Barrett= Yeakel asserts that.CR 60(a) is the current embodiment of a trial
court's inherent power to modify a judgment to make it conform to the judgment it intended. to
enter. Seattle- First 11lat'1 Bank v.. Treiber,. 1.3 Wash.App. 478, 480, 534 P.2d 1376 (1975)
(discussing O'Bryan v..American Inv. & Improvement Co.., 50 Wash, 371, 374, 97 P. 241 (.1908)).
It argues, additionally, that, absent evidence tendi to show that the trial court was misled,
mistaken, or lied about what its original intent was, the Court of Appeals should have deferred to
the trial court's latter= stated expression of its intent.
Presidential responds that the Court of Appeals correctly concluded that the trial court abused
its discretion in ordering the amendment. of the judgment. It argues that the. amended judgment
reflects a new expression of intent that is in "irreconcilable conflict" with the trial court's original
intent, as expressed in the trial court's .oral decision, findings of fact, conclusions,of law, and
judgment. Answer to Pet. for Review.at 1, 2. f=inally, Presidential contends that the trial court's .
latter- stated intent is merely ''conclusory and unsubstantiated claims of a 'new intent.' Answer to
Pet. for Review at 2.
A
We are satisfied that the Court of Appeals was correct when it concluded that the trial court
abused its
Page 326
discretion in amending the judgment to provide access for emergency vehicles over Presidential's
property. That is so because; in our judgment, the trial court was attempting to correct judicial error
when it did so. This it. cannot do.pursuant to CR 60(a). We reach that. conclusion because that rule
allows a trial court to grant relief from judgments only for clerical mistakes. It does not permit
correction of judicial errors. In re Marriage of Stern,. 68 Wash.App.. 922, 927, 846 P.2d 1387
(1993); In re. Marriage of:Getz, 57 Wash.App. 602, 604, 789 P. 2d..331 (1990).
In deciding whether an error is "judicial" or "clerical," a reviewing court.must ask itself whether
the judgment, as amended, embodies the trial court's: intention, as expressed in the record at.tria1.
Marchel v. Bunger, 13 Wash.App. 81, 84, 533
[917 P.2d 1041 P.2d 406, review denied, 85 Wash.2d 1012 (1975), if the answer to that question
is yes, it logically follows that the error is clerical in that the amended judgment merely corrects.
.language that slid. not correctly convey the intention of the court, or supplies language that was
inadvertently omitted from the original judgment. If the answer to that question is no, however, the
error is not clerical, and, therefore, must be jud`cial. Thus, even though a trial court has the power
to enter a judgment. that differs from its oral ruling, once it enters a written judgment, it cannot,.
under CR 60(a), go back, rethink the case, and enter an amended judgment that does not %find
support iri the trial court record. [5I
The amendment that was undertaken here fails under the above authority because there is
nothing in the record of the trial to support the contention that the trial court unintentionally failed to
put in the judgment a provision
Page 327
regarding access over Presidential's property for emergency vehicles. Conversely, and
significantly, there is much in the record indicating that the trial court.harbored the opposite
intention. It is clear from the record that we have been furnished that, at the time the trial court
issued its original judgment, it:was keenly aware of the importance of the issue of emergency
access, [63 Report of Proceedings. at 19 -21, 37- 38,.58.3 155758., 1.6768, 192 -931 212 -13. Despite
this testimony; the trial court said, in its oral ruling, that "there will be no right to use easement
beyond. 390 feet .." [73 Furthermore, its written conclusions of law 1$1 and judgment igj mirrored that
sentiment. In short, the record unambiguously supports the conclusion that the
Page. 328
trial court was attempting. to correct judicial. error. The Court of Appeals, therefore, correctly
concluded that the portion of the amended judgment relating to access for emergency vehicles
was not correctable under CR. 60(a).
In affirming the Court of Appeals, we acknowledge that the trial court may have sincerely
believed. that the additional relief it provided. in the amended judgment could be [917 P:2d 1051
implied from the spirit of`the equitable remedy that it had crafted in the original judgment. in the
absence. of any expression in the trial record showing that the trial court intended at the time the
original judgment was entered to grant that additional relief, however, there is simply no basis.
upon which this, or. any reviewing court, can possibly fit the correction within the scope of CR
60(a ),.
B
Insofar as the amended judgment permits Barrett-Yeakel to install a storm drain under the
easement, we disagree with the Court of Appeals`s conclusion that this portion of the amended
judgment. was an impermissible attempt to correct a judicial error. Unlike the state of the record
regarding emergency access,. the trial record supports Barrett- Yeakel's assertion that the trial
court originally intended to permit the storm drain to be located under the easement. [16j
In the original judgment, the trial court enjoined Barrett- Yeakel from asserting any right or
interest 'in the property.of Presidential Estates except for the 396 -foot easement that was
established in 1988 for ingress and. egress and utilities. While the original judgment was, arguably,
a bit ambiguous as to where such a storm drain.
Page 329
could be located; it. is appropriate for a cou rt. to. invoke CR 6.0(a) to clarify an ambiguity in a
judgment. In. situation s such as exist in this case, where. a. judgment is unclear or ambiguous, a
judge's fatter - stated explanation of his or her original intent has been accepted by the reviewing
court to clarify such ambiguities. See, e.g., Getz, 57 Wash.App. at 604 -05, 789 P:2d 331; accord
In re Kramer's Estate, 49 Wash.2d 829, 830, 307 P.2d 274 (1957) (amended judgment affirmed
under Rule of Pleading, Practice and Procedure 7, in part based on testimony of judge who
entered original. and amended judgments), [111
Contrary to Presidential's contention, the. portion of the amended judgment that permits
Barrett- Yeakel to install and maintain a wastewater line under the 390 -foot easement. does not
conflict with the original ruling. The original judgment does not preclude an underground utility
because it refers to the 1988 easement which appears to contemplate the placement of utilities
under, in, as well as over., the length of the easement. The amended judgment provides
clarification only as to where the storm drain may be located, arid, therefore, merely serves to
correct a clerical oversight or omission. As noted above; CR 6Q(a} permits such corrections.
I l
Presidential seeks an award of reasonable fees and costs, pursuant to RAP I S. 9(a), [1 �1
contending essentially that Barrett - Yeakel's appeal is frivolous. More specifically, Presidential
.asserts that: Barrett - Yeakel has "abuse[d] ... the appellate process by pursuing "a misguided
review, based
Page 330
on a calculated disregard or distortion of the trial court record." Answer to Pet. for Review at 18,
17.
"An appeal is frivolous if there are no debatable issues upon which reasonable minds might
differ and it is so. totally devoid of merit that there [is] no reasonable possibility of reversal." Fay v.
Northwest Airlines, Inc.., 1.15 Wash.2d 194, 200 =01, 796 P.2d 412 (1990). Not only has Barrett-
Yeakel [9 17 P. 2d 1061 presented a debatable issue regarding the application .of CR 60(a) in this
case, it has prevailed in part. This appeal, therefore, is not frivolous and Presidential's request for
an award.of att.orney fees is denied.
The decision of the Court of Appeals is affirmed in part and reversed in part.
DOLLIVER, GUY, MADSEN and SANDERS,. JJ., concur.
JOHNSON, Justice. (dissenting .
f disagree with the majority's opinion because. it fails to recognize the discretionary nature of
CR 60(a) and will restrict the ability of trial courts to fully resolve disputes and preserve judicial
resources. The majority's analysis falls short because it: (1) fails to review the entire record; (2)
reaches inconsistent results regarding two necessarily related corrections; (3) throws the parties
back into a. dispute; and (4) substitutes its judgment fora discretionary trial court .decision. The
amended judgment in this`case is entirely consistent with the purposes empodied in CR 60. 1
would find that the trial court's actions were appropriate.
The proper focus of a CR 60.(a) an is on the trial court's .motive in exercising its
discretionary authority under the rule. That is, CR.60 allows trial courts to modify their judgments
when their intent.is not fully carried out in. the original judgment. A reviewing court should not
second guess a trial court's discretionary decision, and substitute its intent for that of the trial
court. Because the trial court in this case was correcting a judgment that did not give effect to its
intent in fashioning the origina€ judgment, 1 would affirm the amended judgment of the trial court.
Page:331.
Importantly; the trial court in this case fashioned an equitable remedy intended to completely
resolve the dispute between the parties. See Eichorn v. Lunn, 63 Wash.App. 73, 80,.816 P.2d
1226 (19.91) (goal of court sitting inequity is to completely resolve the dispute. Before it). The.
record indicates the trial court's intention in this case was to fashion this equitable. remedy by
enjoining the complained.of encroachments in part, compensating the Plaintiffs in part, and
allowing the Defendants to continue to operate their apartment complex. The trial court's
amendments to the judgment' in this case served the limited purpose of :ensuring the dispute
between these parties would be resolved.
To this end, the trial court exercised its discretionary authority under CR. 60(a) to amend, its
brig inai judgment. CR.60(a) provides trial courts a framework for exercising their authority to
modify judgments to. reflect their intent. The rule allows trial courts to correct "[c] lerical mistakes ...
arising from oversight or omission...." CR 64(a).
In order to Aetermi ne whether a purported error is "clerical" and whether CR 6.0(a).applies, the
Majority relies on a line of Court .of AppeWs cases which classifies errors as. either clerical or
judicial, depending upon whether or not there is support. in the record for the amended judgment.
Majority at 103 -04..
While I.agree:CR 60 (a) requires distinguishing between clerical and other types of errors; I do
not find this analysis particularly helpful in determining. whether 'a trial court abuses its discretion
by modifying a judgment under CR 60(a). A mare helpful analysis begins with understanding what.
CR 80(a) does and does not allow. CR 60(a) does: not allow a trial court to correct what it
intentionally did, but it does allow the trial court to correct a judgment which, through oversight or
omission, .does riot reflect the court's Original intent. This principle is c €early articulated in federal
decisions interpreti ng. the analogous federal provision,. Fed.R.Civ.P. 60(a).
The basic distinction between "clerical mistakes " and
Page 332
mistakes that cannot be corrected pursuant to Rule 60(a) is that the former consist of "blunders in
execution" .whereas the latter consist of instances where the court changes. its mind, either
because it made a legal or factual mistake in making its Original determination, or because on
second thought it has decided to exercise its discretion in a manner difPerent.from the.way it was
exercised in the original determination.
[917 P.2d 1071 Blanton v. Anzalone, 813 F.2d 157.4, 1577 n. 2 (9th Cir.1987). See also American
Fed`n of Grain Millers, Local. 244 v. Cargill, Inc.., 15 F.3d 726, 7.2.8 (7th Cir.1994) (disting.uishing
"between changes that implement the result intended. by the court at the time the order was
entered and changes that alter the original meaning to correct a legal or factual error ") (quoting
Wesco Prods. Co. v. Alloy Auto. Co., 880 F.2d 981., 984 (7th Cir.1.989)). A judge may use CR
60(a) to make a.judgmerit reflect the actual intentions of the court, plus necessary implications.
.Jones & Guerrero Co. v. Sealift Pac., 650 . F.2d 10.72, 1074 (9th Cir.1981). An important point to
remember in applying this rule. is modification. of a judgment is an act squarely within the discretion
.of the trial court. C'Bryan v.. Airie. ican .W. & Improvement Co., 50 Wash. 371, 374, 97 P. 241
(1908); see also In re the Marriage. of Tang, 57 Wash.App. 648., 853, 789 P. 2d 118 (1990)
(applying CR 60(b));
The majority, in its review of the record, finds there is nothing in the record of the trial court to
support the contention that the trial court unintentionally failed to put in the judgment a provision
regarding access over Presidential's property for emergency vehicles." Majority at 104. The
majority goes. on to state "there is much in the record indicating that the trial court harbored the
apposite intention." Majority.at 104: However, the majority limits its review of the record to'the trial
court's oral decision and the. original written judgment, and fails to search the complete record. By
looking at the testimony offered .at trial, the trial court's amendment was not only proper, it was
required.
Page 333
At trial, the three witness who gave live testimony (Mr. Piha (Plaintiff), Mr. Yeakel and Mr.
Barrett (Defendants)) ail discussed the emergency fire access. Report of Proceedings at 20, 68,
1.56, 167, 192, 212. The common thread in each of.these witnesses' testimony was that
emergency vehicle access is required by the fire department for the. Defendants' apartment.
complex to operate, Whether or not the emergency vehicle access issue was "directly in dispute"
is not important' What is important is the fact the trial court had Before it considerable testimony
acknowledging that emergency vehicle access is required to. operate the apartments. In fashioning
the equitable remedy, the trial court was aware that emergency vehicle access was required. The
trial court's judgment, the equitab €e payment of $22,500, makes no sense if the apartment
complex is not able to operate.. The amendment to the judgment was consistent with thetrial
court's original intent.
On the other hand, nothing in the record supports the plaintiffs' contention, and the majority's
f nding, that the trial court changed its mind based on a legal. or factual mistake. Rather, the trial
court acted squarely within its discretion by recognizing that the equitable remedy it entered did
not give full effect to its intent. to fully. resolve the controversy.
Further support for this reading of the record is found in statements made by the trial court in
amending the original judgment: In applying C 60(a), reviewing courts recognize that a trial
court's own subsequent statements of intent are material when reviewing relief granted under CR
60(a). In re dee,.799 F.2d 532, 535 (9th Gir.1986), cert. denied, 481 U.S. 1015, 10.7 S.Ct. 1892,:95
L. Ed.2d 499 (1987); In re Marriage of Getz, 57 Wash.Rpp. 602, 604 -05; 789 P.2d .331 (199.0). In
this case, the trial judge made the fallowing statements at the hearing on presentation of the
amended judgment:
[T]he court was sitting in equity, and it seems to me that the findings, facts, conclusions of law and
judgment simply did not clearly .state the Court's intent.
Page 334
[M]y intent in fashioning [an] equitable remedy was really to permit them to have the kind of use as
relates to these encroachments with the payment of money.
The only encroachments really that were significantly litigated related to the ingress and
egress of the 18 or 16 units: The fire ingress and egress, the southern access was in my judgment
basically a de mihimis kind of impact on. Presidentia€ Estates,. as well as putting an easement .
underground out to the street when you disconnected the storm drainage system.
1917 P.2d 108] So the. decision and. findings of fact really did not clearly encompass.my intent.in
exercising equitable powers in trying. to fashion [an] equitable remedy which was offered in part by
Presidential Estates, but the Court.also independently tried to fashion a remedy..
Clerk's Papers: at 275 -78. furthermore, no evidence exists in the record, nor has Plaintiffs'
counsel made any persuasive allegation, that the amended judgment. will have an adverse effect
on Presidential Estates. See. O'Bryan, 50 Wash. at 374, 97 P. 241.
If.the majority's review of the record on the fire access issue constitutes the proper scope of
review., then, to be consistent; the majority would have to reverse the amendment allowing for the
storm drain easement because it too .is .not. specifically mentioned or allowed by the oral decision
or original written judgment. But the majority does the. opposite and finds. support for the storm
drain amendment by delving deeper into the record and finding that the word "through'' contained
in the stipulated easement authorizes the storm drain hook -up. I agree entirely with this approach.
1 wish the majority had made a similar in -depth examination of the record with regard to
emergency vehicle access. Such an in -depth examination (as demonstrated above) provides
ample support for the trial court's amendment. The majority's failure to consistently examine the
record and apply the. rule results in an inconsistent
Page 335
decision, allowing one.correction but not another. Based on the dispute between these parties and
the record, Loth corrections are required to give effect to the intent of the trial court in fashioning
.an equitable remedy that completely resolves this case,
The majority's decision [eaves the parties guessing as to where they now stand..By allowing
the storm drain easement, the majority appears to agree that the judgment was intended to allow
the Defendants to operate their apartment complex. However, the denial of the emergency vehicle
access easement raises questions as to what additional. actions the Defendants must now pursue
in order to. effectuate that intent. Options may include filing new motions, a new lawsuit,
negotiations, or tearing down part or all of the apartment complex. The trial court, however,
properly sought to resolve all of these remaining issues in handing down its equitable remedy. The
majority's inconsistent.decision creates needless uncertainty in both parties and fails to completely
resolve their dispute.
This uncertainty resu Its. from the. majority's substituting its version of the. trial court's. intent for
the trial court's own intent.. The best evidence of a trial court's intent is its own statements
articulating that intent. Unless the record contains absolutely nothing to support the trial court's
statements of its own intent, a reviewing court should not substitute its reading of intent. While our.
job is to provide guidance to trial. courts, we should not second guess their discretionary decisions,
substituting their judgment with our own,. when the trial judge is in the best position to fully
understand. the panoply of factors contributing to any single decision;
.Based on. the testimony at trial, the court's statements in fashioning its equitable remedy, and
the court's subsequent statements of intent, the trial court. acted properly under C 50(a) by
correcting and clarifying an omission. from its original judgment. Therefore, I dissent.
Page 3.35
DURHAIVI, C.J:,. and SMITH and TAI_MADGE, JJ., .concur.
Notes.
11.1 Civil Rule 6D(a) specifically addresses "Clerical Mistakes," and reads., in relevant part; as
follows:
"Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from
oversight or omission may be corrected by the court at any time of its own initiative or on the
motion of any party and after such notice, if any, as the court orders."
C �1 The easement was established in. a separate action that dated back to 1988. The judgment in
that action provided, in relevant part, as follows:
"a) The easement is legally described as follows:
THE NORTH 390 FEET OF THE EAST 30 FEET OF THE NORTHEAST 114TH OF THE
NORTHEAST 114TH OF SECTION 9, TOWNSHIP 22, N.R. 4E W.M. in KING COUNTY,
WASHINGTON....
"b) This easement is and shall .be: for the purposes of ingress and egress and for utilities for a total
of up to sixteen (15) living units:... and: shall run with the land.
"c) [The: benefited property owner] shall obtain: alI necessary permits for use: of the easement and
extension of utilities through the easement to South 208th Street[, and] shall bear the sole cost of
replacement of all utilities desired by [such owner] to be placed in.the easement, and all
restoration of the roadways and parking areas effected [sic] by construction .....to a state of repair
commensurate with its state prior to construction." Pls.' Ex. 5 at 2 =3.
131 Barrett- Yeakel constructed two entrances into Colonial Commons 11. Both entrances connect
with 32nd Lane, a private road that. is located on the property of Presidential Estates. The first, or
northern, entrance is situated so that it connects with 32nd Lane within the 390 -foot easement
described above. The other more southerly entrance is located approximately 548 feet south of
the. public road that defines the northern end of the.easement; and is thus outside of the
easement.
.141 Barrett - Yeakel initially filed a motion for relief under CR 60(b), which provides, in part, that a
court "may relieve a party .,. from. a inal.judgment [because of] mistakes, inadvertence, surprise,
excusable neglect or irregularity" in obtaining the.judgment. BarrettwYeakel initially asked the court
to clarify only whether it had intended. to permit access to the southern entrance into Colonial
Commons IL..lt subsequently abandoned its reliance upon CR 60(b) in. its argument Before the trial
court -and the Court of Appeals, and has not raised CR 60(b). in its petition for review to this court..
151 A statement made at oral argument: Before this court illuminates another indicator of the
essential distinction. between "clerical error" and "judi.cial error." Counsel for Barrett-Yeakel began
its argument and said that it. asked the trial court to "amend the judgment because we did not
believe that he intended the results of his original judgment." Oral argument tape 1 (Feb. 8, 199.6).
Whether a trial court intended that a judgment.should have a certain result is a matter involving
legal. analysis and is beyond the scope of CR 60(a ) .. The rule is limited to situations where there: is
.a question whether a trial court.intended to. enter the judgment that was actually entered..
151 The dissent characterizes this testimony as "acknowledging that emergency vehicle access is
required to operate the apartments." Dissent:at 1.07. We disagree. Our reading of the record
convinces us that it was an open question whether there were other measures available to Barrett-
Yeakel that would satisfy the City of 5eatac fire safety requirements and still allow the apartments
to operate, or whether the city's fire code would require the emergency access to remain as it was.
Indeed, a letter in the record from a fire inspector for the City of SeaTa.c seems to indicate that
other options existed. Clerks Paper's at 199 -200..
[7] The trial. court's oral ruling, in relevant part, was as follows: "I will. grant the injunction as it
relates to the use of Presidential Estates property beyond 390 feet. In other words, so the record
will be clear, whether you call it an order quieting title or an injunction, permanent injunction, it will
be clear that there will be no right to use the easement beyond: 390 feet." Report of Proceedings at
263.
[$] Conclusion of law 2 reads, in relevant part, as follows: "[A] permanent injunction should issue
enjoining..... defendants ....from directly or indirectly:
a. Using any portion of the property of plaintiffs [Presidential Estates] iri excess of that expressly
authorized. in the Court - Ordered Easement, including but not limited to any access in excess of the
390 -foot .e.asement set forth therein." Clerk's Papers. at 117.
[9] The judgment reads, in relevant part, as follows: "[Barrett- Yeakel is] hereby permanently
enjoined and restrained from, directly or indirectly:
1. Using or encroaching upon or. interfering with the Presidential Estates Apartments property, or
any portion of it, for any purpose or reason, except for the limited right.of ingress and egress and
utilities authorized by the 390 -foot Court - Ordered Easement for the Colonial Commons II
property(, and from u]sing the 548.09 -foot access over the Presidential Estates Apartment
pro perty identified, among other thiings, in the ... "Access Easement" plan, and "Site'` plan ...
purporting to provide a second access over the Presidential Estates Apartments.property for the
benefit of Colonial Commons I]." Clerk's Papers at 1215-27..
1101 The fact that we held that it was appropriate under CR 60(a) to amended the judgment to
permit installation of a storm drain under the easement, and that it was inappropriate under that
same rule to afford emergency access to Barrett - Yeakel is not, as the dissent indicates; an
"inconsistent decision" that "fails to completely resolve [the parties] dispute," Dissent at 108.
Although Barrett- Yeakel may indeed have safety issues that it wishes to address.withi the City of
Sea.Tac,. the trial court's original judgment, as we have interpreted it here, .resolves completely the
dispute. between Barrett;Yeakel and Presidential.
[11]
OR 50(a) is identical in all relevant respects to., and is the antecedent to,. Rule of Pleading,
Practice:and Procedure 7.
[12] RAP. 18 9(a) provides, in relevant part, as follows: "The appellate court on its own initiative or
.on. motion of a party rriay order a party or counsel ... who uses these rules [of appellate procedure]
for the purpose.of delay, files a frivolous appeal, or fails to comply with these rules to pay terms or
compensatory damages to any other: party who. has been harmed by the delay or the failure to
comply:"
BEFORE THE HEARING EXAMINER
CITY OF BAINBRIDGE ISLAND.
In the Matter of the Application for
Conditional Use Permits by
SEATTLE YACHT CLUB
SCUPICUPI3042
andthe.Appeal of the Director's
Threshold: Determination (MDNS) by ORDER ON REQUEST
FOR RECONSIDERATION
MAHLUMIFRANZ et al. AND REISSUING DECISION
tatus for Filing Request:
On. October 4; 2006,.the. Hearing.Examiner received a :request for reconsideration submitted by Thoinas
H. Robertson and Johanna Vanderlee.: Having submitted a Ietter that was .'included in the record [Exhibit
1201; Mr. Robertson and Ms. Vanderlee are properly considered "parties of record" regarding the Bearing .
held on the, application for use permits [see Hearing Examiner Rules, .Chapter: I; Section, 3].
Mr: Robertson and Ms. Vanderlee are .also members of the group that appealed the Director's SEPA
threshold determination; they are not-Separate "appellants ". As noted .at the beginning of the hearing,
there is only one appellant. in this matter because: only one appeal was fi led (i. e. ,. the appeal filed by the
group referred to as "MahlumlFranz et al.l. Individuals in the appellant group could participate and have
rights in the SEPA appeal through the appellant group; the appellant group is the "party of record in the
SEPA appeal. Although both Mr. Robertson and Ms. Vanderlee are included in the appellant group,
neither was . designated. to represent the .appellant. and exercise its rights as a party in that appeal [see
Hearing Examiner Rules, Chapter 1, Section 41,
Request and Response.
The request for reconsideration .states that it is. ;sought due to "inadvertent.. omissions, clear mistake of
material fact, or error of law and..asks :that.several conditions (described in the request) `be added to the
decision, The additional conditions sought include: restricting. or prohibiting. some Yacht Club: activities,
restricting the Springer dock to sailboats, reducing the size -of the proposed parking areas, offsetting the
southern driveway entrance so as to not. face the RobertsonlVanderlee driveway across the road,
reconfiguring the easterly end of the main dock to avoid: possible. encroachment into public tidelands,
expressly prohibiting "unpermitted expansion", and. requiring the proposed view :corridor: The 'request
also.alleges that requiring paired driveway "approaches" (see Condition 19) would be detrimental to the
neighborhood.
The Director and the Applicant were notified of the :request.for reconsideration and given opportunity to
respond: to it. "The responses note:. that the request for reconsideration fails to provide support: for the
assertions of error, omission, and :mistake. The Director and the Applicant .object to the requested .
additional conditions, with one exception: The Director and the Applicant. agree with the
RobertsonNanderlee opposition to the requirement in Condition 19 that. driveway approaches be paved.
The Director and. the Applicant. proposed extensive "revision ". of both Condition 19 and Condition 20 to
include changes detailing the actions. they believe appropriate for those conditions.
Order.
November 13, 2006
Page 1 of 4
Mr. Robertson and Ms. Vanderlee submitted. comments on the suggested revisions submitted by the
Applicant.and the. Director. Their reply: suggested revisions for Conditions 7,..I9; 2A, 2.1, 26, 32; 33, and
78, and two new conditions (regarding limits to. .SYC .operations,. prohibiting :construction not specified .in
the permit and prohibiting any impairment of the proposed view corridor). The appellant group,
N1ahlum/Franz et at., indicated.: support for the RobertsonNimderlee position.
Hearing Examiner Rules_Regarding Reconsideration:
The Hearing Examiner Rules for "Hearings. on Permit Applications" (Chapter II, Section 6, Rule d.4b;
emphasis added) provide that;
L Any Party of Record may file a written request: with. the Examiner. for reconsideration of'the
Examiner's recommendation or . decision within ten :(10) working days of the :date of the. Examiner's
recommendation or decision. The M nest shall explicitly state the alleged errors of procedure or. fact. The
request may also include direction to a specific issue that was inadvertently omitted from the Examiner's
recommendation or decision,
2. The Examiner shall act witch five (5) working`days after the..date of the filing of the request
for reconsideration by either denying the request=. approving the. request by modifying or amending the
recommendation or decision.. based on the established record, requesting written responses from other
Parties of Record, or setting the matter for an additional hearing.
3. If an additional hearing.is required the notice of said. hearing shall be mailed to all Parties of
Record not Iess than.five (5) working days.prior to the date of the. new hearing.
The Hearing Examiner Rules for "Open Record Appeal Hearing. of Administrative Decisions" (Chapter
III, Section 12,.Rules 12..1 - 112; emphasis added ).provide that:
III Reconsideration shall be granted by the Examiner on a showing of one or more of the
following:
a. Irretrulari in .the_pro=dings by which the moving. party was prevented from having a fair
hearing;
b. Newly discovered evidence of a material nature which could not with reasonable dill once
Have been produced at hearing,
c. Clear mistakeas to a material fact.
122 Motions for reconsideration must be filed within ten (10) working. days of the date .of the
Examinez's decision. Unless otherwise specifically provided by the applicable .ordinance(s), the time. for
appealing a decision shall `begin to run. upon the issuance of a decision .ori a motion for reconsideration
that was filed in a.tiineiy wanner.
Order and Clarification of Conditions . 19` and 20:
The Hearing Examiner Rules provide limited grounds. (i.e. a showing .of error, procedural irregularity;
material .omission or mistake) for granting reconsideration. The option for use. of gravel was
inadvertently omitted from Condition 19. Other than that, Mr. Robertson and Ms. Vanderlee .have failed
to show a basis cognizable . udder the. Hearing. Examiner Rules for reconsideration: no irregularity is
asserted .or shown; the new "facts" asserted could have been (but were not) produced at hearing; arid,
other omissions and. mistakes asserted are. based on their preference. for different and additional
conditions, not a showing of error.
The. parties have all suggested.. "revisions" of the conditions: Some of the suggested changes are
un ieessary others would. change terms and. directions intentionally: included to accomplish an intended
outcome. Both Condition 19 and Condition 24 need to be clarified. to ensure better understanding of the
intent of those conditions and the specifics necessary to satisfy the intent.
Order
November 13, 2006.
Page 2.of 4
Condition 1.9 and Condition 24 are hereby REVISED to provide the necessary and appropriate clarification,
as follows:
19. *In accordance with BIMC Chapter 18.85 and to the satisfaction of:the Director,. a
25 -ft. wide "partial screen" landscape buffer shall be established and
maintained on the eastern 25 -ft. of the subject property Q.e., west of the SYC
property boundary, as that boundary is established or verified pursuant to Condition
20). This buffer shall be: planted with native plants in accordance with the
Landscape Plan [Exhibit 57 revised, see below and Condition 201.. The buffer area
south of the southern driveway entrance that is..not slated for landscaping shall be
maintained in` its existing condition (except that diseased. or hazard trees. and invasive
plants may be removed as maintenance)..
Revise the Landscape Plan to include the following:
a. Raved OR graveled driveway "approaches" to connect to and match the
grade of the existing roadway pavement of. Spargur Loop Roan (i.e., to.provide
a relatively smooth `transition" surface between the western edge of the Spargur
Loop Road pavement and the driveway entrances shown in Exhibit 57 and
described: in " b" and "d' below);
b. A northern entrance (north of the parking area containing parking spaces 1
through 26 see in Exhibit 5.7) having .a I5-ft. wide "approach" (see "a" above)
AND, to provide for access at the northern end of that parking area, either a 15-
ft. wide driveway PR. a 10-ft. wide driveway with. 2 -f#. wide "shoulders ".
c. A southern entrance` (south of the parking area containing parking spaces 1
through 25 - see in Exhibit 57) haying a 15 -ft. wide "approach" (see. "a" above)
AND, to provide for access at the southern end of that parking area, either a 15-
ft. wide driveway. OR a 10-ft. wide driveway with 2 -ft. wide "shoulders'.'..
The rest of the southern driveway. (and the parking. areas) to. be pernnitted
consistent. with Exhibit 57 as determined appropriate by the Director.
20. *The applicant shall :do the following to help. facilitate .safe two -way vehicular travel
on Spargur Loop Road adjacent to the frontage of the subject- property:
a. Through a survey prepared by a licensed land surveyor, SYC -. shall, prior to
beginning. work on the 25 -ft. wide: landscape buffor [see. Condition .19] and to the
satisfaction of the City, identify and. urap..the location of the following along
the north- south leg :of Spargur Loop Road: (1) the eastern boundary of
SYC's property; (2) the western edge of the existing roadway pavement;: (3)
any improVeme.ats. or structures (e.g,, fences,, utilities poles, etc.) between the
.western edge of the existing pavement and. the eastern property boundary of
SYC's property. Based upon this. survey, SYC shall quitclaim or provide a
right -of -way dedication along the SYC frontage as necessary tv. establish and/or
clarify,. to the satisfaction of the City;.the.:easterlyboundary of. SYC 's property,
relative to the location and extent of a 30 -ft. wide:public right-of-way for Spa g,r
Loop Roast.
b. Ensure. that all existing or proposed .SYC improvements (including, but not
limited to the proposed 25 -ft. landscape bufffer;:see Condi #ion :I9), are located on
SYC: property. That is,. all SYC improvements roust be west of SYC'.s easterly
property boundary and outside the Spargur .Loop Road public right-of-way, as
Order
November 13; 2006
Page 3 of 4.
that boundary and right-of-way are :established and/or clarified pursuant to "a
above.
C, To the satisfaction of the Director and in coordination with the Public Works
Department (with-a. right-of-way permit iflas required), SYC shall clear existing
vegetation from. the area west of the existing pavement of the north- south leg of
Spargur Loop Road in order to provide a informal. roadway "shoulder" not
less than 3-ft. Wide in the public .right-of-way contiguous to the western edge
of the existing pavement (see "a" above): This "shoulder" area shall..be cleared
along the entire SYC frontage, frorii the northernmost SYC driveway entrance
(see Exhibit 56 or 57), to.the southern boundary of SYC's property. In addition,
as approved by the Public Works Department, SYC shall provide within the
publi c right- of-way, one turnout (at least 64 wide) located west. of the western
edge of.the existing pavement and approximately 300 ft. north of Hidden .Cove
Road. Except for existing trees that meet the BIAMC definition for ".significant ",
all vegetation shall be cut down and cut back and structures shall .be removed
(except utility poles, guidp wires, and other public facilities) from the "shoulder"
and turnout. areas. These areas shall be leveled /graded and graveled as
necessary (except in wetland or other designated critical areas) in order to
provide a serviceable "shoulder" and.turnotit.
NOTE' Condition 20 does not require comprehensive "half - street" improveffients
matching the City's design standards and .specifications for a street of this classification.
Decision Reissued:
To clarify Condition 19 and Condition 20 as noted above, the decision in this matter (originally issued:
September IS,. 2006), shall be REISSUED on November .13,. 2006.
Entered this. 13th day of November 2006;
order
November 13, 2006
Page 4 of-4
sigg ned in on inal
Meredith A. Getches:
Hearing Examiner
BEFORE THE FEARING EXAMINER
CITY OF BAINBRIDGE ISLAND
In ..the Matter of the. Application. for
Conditional-Use Permits by
SEATTLE YACHT CLUB SCUPICUP13042
and the Appeal of the Director's
Threshold Determination (MDNS) by NOTICE REGARDING
REISSUING DECISION
Ii AHLUM/ FRANZ et al.
Dear interested Citizen:
This notice is: being. sent to all persons on the mailing fist used for distribution of the
decision in this matter (issued: on September 18, 2006).
Please he. advised that the decision in this matter is i]eina_ reissued today to clarify the
intent and detailing -specific requirements for Condition 19 and Condition 20. The only
change to the decision is this revision of .Condition 19 and. Condition 20, and date of
issuance (changed to November 1.3. 2006).
Condition .19 and Condition 20 are revised to read:
19. 41n accordance with SIMC Chapter 18.85 and to.. the .satisfaction of the. Director, a
25 -ft.. wide: "partial screen" landscape buffer :shall. he established and
maintained . on the eastern 25-ft. of the subject property (i.e., west of the SYC
property boundary, as that Boundary is established or verified pursuant to Condition
20). This buffer shall be planted with native plants in accordance with the
Landscape Plan (Exhibit 57 revised, see below and Condition 20]. The buffer area
south of the .southern driveway entrance that. is not slated for landscaping shall be
maintained ,in its..existing condition (except .thatdiseased. or hazard trees and invasive
plants may be removed as maintenance).
Revise the Lands.cape.Plan to :indude:the following:
a. Paved OR .graveled driveway "approaches"` to connect to and match the
grade of .the .existing roadway pavement of Spargur Loop Road. (i.e., to provide
a relatively smooth "transition ".surface between the. westem edge of the.: Spargur
Loop :Road pavement and the driveway entrances shown in Exhibit 57 and
described in "b" and "c" below),
b. A northern entrance (north . of the parking area containing parking spaces 1.
through 26: - see in Exhibit.5.7) having a 15-ft. wide. "approach" (see. "a" above)
AND, to provide for access at the northern. end. of that. parking area, either a 15-ft-
wide driveway l]R a 18 -ft: wide driveway with 2•- ft..wide "shoulders ":
c. A southern entrance (south of the. parking area containing parking.- spaces: 1
through 26 - see in Exhibit:5.7) having a 15- ft..wide "approach" (see ` a".above)
AND, to provide for access at the southern end of that parking area, either a 15-
ft. wide .driveway OR a IU -ft. wide driveway with 2 -ft: wide "shoulders ".
The rest of the. southern driveway (and the parking areas) to be permitted
consistent with Exhibit 57,. as determined appropriate by the Director.
Order
November 13; 2006
Page 1 of 2.
Notice: Decision. Reissued
November 13,2446
Page 2 of 2
20. *The applicant shall do the following W. help facilitate safe two -way vehicular travel
on Spargur Loop Road adjacent to the .frontage of the subject property:
a. Through a survey prepared by a licensed land surveyor, SYC 'shall, prior .to
beginning work on the 25 -ft. wide landscape buffer [see: Condition 19] and to the
satisfaction of the City, identify and map the location of the following along
the north -south .leg of Spargur Loop Road: (1) the eastern boundary of
SyC's property; (2) the western edge of the existing roadway pavement; (3)
any improvements or structures (e.g., fences, utilities poles; etc.) between the
western edge of the existing pavement and the eastern property boundary of
SYC's property. Based upon this survey,. SYC shall quitclaim or provide a
right-of-way dedication along the SYC frontage as necessary to establish and/or
clarify,. to the satisfaction. of the City., the easterly boundary of SYC,..s property,
relative to the location and extent of a 30 -ft. wide public.right -of way for Spargur
Loop Road.
b. Ensure that all existing or proposed SYC improvemen ts (including, but not
limited to the. proposed.25 -ft. landscape:buffer; see Condition 1. 9),. are located on
:SYC property. That is, all SYC improvements must .be west of SYC's .easterly
property boundary and outside the Spargur Loop Road public right -of -way;. as
that boundary and right-of-way are established and/or clarified pursuant to "a"
above.
c. To the .satisfaction of the Director and in coordination with the Public Works:
Department (with a right-of-way permit Was required), SYC shall clear existing
vegetation from: the area west of the existing pavement .of the north- south leg of
Spargur Loop Road in order to provide a informal roadway "shoulder" not
less than 3-ft. wide in the public right -of -way contiguous to the western edge
of the existing pavement (see "a" above).. This "shoulder "`area..sMl be cleared
along the entire SY.0 frontage, from the northernmost SYC driveway entrance
(see Exhibit 56 or 57), to the southern boundary of:SYC's property. In addition,
as .approved. by the Public Works Department, :SYC shall provide within.. the
.public right-of-way, one turnout (at least .6.ft, wide) located west of the western
edge of the existing pavement: and approximately 300 ft. north of Hidden Cove
Road. Except for existing trees that meet the BIMC definition for "significant';
.all vegetation shall be .cut down and cut back and structures shall be removed
(except .utility poles.; .guide wires, and .other public facilities) from the "shoulder"
and turnout areas. These areas shall be leveled/graded and graveled as
necessary (except. in wetland or. other .designated critical. areas). in order to
provide a serviceable. "shoulder" and turnout..
NOTE; Condition 20 does not require comprehensive "half - street" improvements
matching the. City's design. standards and specifications. far a street of this
classification..
If.you would like to have a. copy of the entire decision as reissued, you may request that a
copy be sent via email (dsawyetC&bainbridge:net), or by regular mail (Hearing
Examiner's: Office, Attention: Diane Sawyer, City Hall, .280 Madison Ave. N.,
Bainbridge Island, WA 98110- .18.12),
November 13, 2006
Order
November 13, 2006
Page. 2. of'! ...
DECISION OF THE HEARING EXAMINER
CITE' OF BAINBRIIDGE ISLAND
Reissued November 13 .2 .
Revising and Clarifying Conditions 19 and 20
In the Matter of the Application for
Conditional Use.Permits by
SEATTLE YACHT CLUB SCUPICUP13042
and the Appeal of the Director's
Threshold Determination (MDNS) by
MAH.LUM/FRANZ,. et al..
BACKGROUND.
The Seattle Yacht Club seeks a Conditional Use Permit (CUP) and a Shoreline
Conditional Use Permit (SCUP) for construction of several improvements on its property
Within the shoreline. The Director's...SEPA threshold determination (MDNS) was
appealed by several neighbors.
The SEPA. appeal hearing and the public hearing required. for the CUP and SCOT
decisions were. consolidated. A preheating conference was field on. May. 25, 2006, and
the hearing began on June 1, 2006, continuing on Tune 2, 200.6,. June 23, 2006, and July
14, 2006.. Parties represented at the hearing were the Director; Planning and Community
Development Department (PCD or Department), by Joshua Machen, Senior Planner; the
Applicant, Seattle. Yacht Club .(SYC), by its attorney Keith Moxon;. and, the appellant
group NlallunilFranz, et al.,. by attorneys Hillary Fran and Claudia Newman. The record
was closed on August S, 2006 following receipt of post -- hearing submittals.
After due consideration of all the evidence in the .record, the following shall constitute -the
findings. of fact, conclusions of law, and decisions of the Hearing Examiner on this
application and the Director's SEPA threshold determination. Ail. evidence admitted. in
to the record was considered in making this decision. References to exhibits and
testimony that are. shown in brackets denote same of the evidence relied upon; these
references are not intended as exclusive or exhaustive: (Note: Exhibit 92 contains over
100 photographs used in a PowerPoint presentation given at the hearing. Each photo has
an individual identification number preceded by "PP °'.).
FINDINGS
SITE DESCRIPTION
1. The Port Madison Outstation,. or FO'C'SLE, is one of the: nine private
recreational boating moorages operated in the region by the Seattle Yacht Club (SYC) for
SCUP1CUP13042 Reimed 1.1113f2006
.Page I of 34
its members. Addressed as 8750 Spargur Loop Road NE, the Yacht. Club is located at the
northern end of the island, on .the southern shore of Port Madison Bay [see Figure 1,
Exhibit 311. The seven acre site consists of two parcels. (each about 3 %. acres ): the
:original outstation site and the adjacent "Springer" property. The Tax. Assessor parcel
numbers are 3426023- 448 -2005 and 342602 -3- 045 - 2005, 8750 Spargur Loop Road and
Springer property, respectively, See "Site Plan [Exhibit 104] for location of existing
and built and natural features. [Exhibits 3; 15; 71, pages 1, 7 -8; 129; Testimony Machen]
1 The. Port: Madison Outstation (Yacht Club or Club) has been in operation
at the subject site since 1945. In 1944 SYC members were asked to donate money to
purchase waterfront property that included an old building and .dilapidated wharf. In
1945 the property was purchased, the building decorated and dock repaired. In 1963.,
several parcels (originally purchased. from Grace Spargur by a SYC Past Commodore)
were conveyed to. SYC. During the early 1960's improvements were made to the
mstrooms, bulkhead, and landscaping. Clubhouse construction. was completed in 1967.
In the early 1990's the: City and the SYC` settled a dispute. so that the northern parking
area became officially SYC. property. In 1997, SYC purchased the Springer property
immediately to the. west and the.subject application includes the proposal to operate a
small boat sailing program there. [Exhibit 24, Attachment; Ovens]
3. From the rock bulkhead the subject site .slopes fairly steeply [Exhibit 92:.
PP 3 I, Exhibit 149] to gently sloping; well - forested uplands: The existing floating docks
( "dock and "float" are used interchangeably in. this decision), which are generally
parallel to the northwesterly- facing shoreline [see Exhibit 92: PP 5840 Sheet 2, Exhibit
1.13; in red circle page 19, Exhibit 31 ], can. provide moorage for 26 boats [Exhibit 31,
page I]. (The Yacht Club owns the tidelands extending waterward approximately 320 ft.
See also tidelarids.lease, Exhibit 108,) Development on the Springer property [see also
Findings 34 and 35] consists of a single -famiilyhouse C "Springer house ") residence and a
dock ("Springer. dock'. [see Exhibit 92:.PP 12; .15 -16, 98 -1001. [Exhibits 15; 56; Exhibit
71, page 7; 1.13]
4. There are several existing upland structures on the subject site including
the clubhouse (with meeting/dining area, kitchen and restroom/shower facilities) [Exhibit
92: PP 65 -671, restroom facilities at the head. of the clock [Exhibit 92 PP 63], pavilion
[PP 45 -46, Exhibit 92], caretaker's residence [Exhibit 92: PP 51 -52 82]; carport and shed..
[PP 3 -5, Exhibit 92] at the north end. of the property, west of Spargur Loop Road. There
is lawn and landscaping between the structures and mature. trees throughout the site [see
1 -6, 45, 50 -55, 97, Exhibit 9.2; also see Finding 51. There. is parking area. fbt
eleven cars by the Clubhouse [Exhibit.3, Section.3;.Exhibit 92. PP 65-79,.79]. And:an area
south of the Caretaker's residence that is used for overflow parking. [Exhibits 15; .56;.71,
page 7; and. 113 ]
5 The northern part . of the site, where the existing structures are located,
slopes down to the water fxom the southeast to northwest, becoming relatively. steep neat'
the shore [see topography, Exhibit. 105; Exhibit 92: PP 31, 55,.56, 98; Exhibit 1491. The
undeveloped southern portion of site includes some steep stapes: A Category III wetland
of approximately one acre has been. identified in the southwest` portion of the site [see
wetland boundaries, Exhibit 107]. Vegetation includes a thick canopy of red alder and
SC.UPICUPI3042 Reissued 11/13/2006
Page i..of 34
western red cedar, with an uridergtbry dominated by salmonberry with red elderberry,
holly,: and Indian plum; and a sparse groundcover of skunk cabbage, lady fern and
English ivy. t.Exhibits 32; 56; 71, page 7,1
& The Yacht. Club grounds and structures are attractive and well- maintained
[e.g., Exhibit 92: PP 51 -52 '(Caretaker's house), 73 & 86 Club on right), 66 & 79
(Clubhouse),. 89 -92 (parking area), : 93 and 95 (either side of Spargir Loop Road), 5.7
(walkway to gangway /main dock)], In this respect, the Club is compatible with. this
characteristic Island. neighborhood of attractive homes: and wooded roadsides [see e.g..,
Exhibit 92:: PP 75, 81 Exhibits 136F� -I, K -L]; The temporary garage and. stied structures
[see Exhibit 92: PP 4,. 5, and .871 are. exceptions and they would be replaced by the
proposed garage. The large.; brightly colored play equipment set hear the road [Exhibit
92: PP 83, 881 may also be considered an .exception a$ it is located in what otherwise
might.be a scenic westerly view across the lawn. [Testimony Qtarowski; Haugan
7. The site is zoned residential (R -2), two units per acre. :(This designation
would allow for 14 dwelling units on the subject. site,) The. Director considers the Yacht
Club to be an existing non - conforming use. [PCD Staff Report, Exhibit 71,: pages 14 121
8. The: Comprehensive. Plan designation is OSR-2fi Open Space Residential
and the Shoreline Master Program environment designations are "Semi :Rural" upland
and "Aquatic" over water. [Exhibit 7I, Staff Report, page 8,1
YACRT CLUB OPERATIONS
Events
9. The Yacht Club's outstations provide transient moorage for visiting SYC
members (most stay overnight, weekend., or several. days and there is a two -week.
maximum). Most days: in October through May; there are only a few (less than 10) boats .
moored. here, and there are. manly days in each month with no boats at all. During. these.
off - season months: only Yacht Club "events" (e,g., New Year's holiday in January, Chile
Cook -off in February, Garlic Festival. in ]March, and occasional mini- cruise or holiday
gathering) generate 20 or more boats. In 2004 there were 122 days. with .10 or more boats
and/or 20 or more persons and in 2005, . there were 124 days like that. At this rate;
indicate there is little or no noticeable activity two - thirds. of the year.. [Exhibits.126;..130-
132; 134; 166; Testimony Haugen, dtorowski; Woodard]
14.. Summer (May through September) non-. "event" weekdays see relatively
few visitors with at least: several days each month having only a handful of boats visiting.
Summer weekends are popular and it is not unusual for there to be 10 or more boats..
[Exhibits 24,116-112,1341
11. During large. SYC summer "events', the. dock is. full. and boats raft up [see
e.g.., Exhibit 1611. Summer holidays and Yacht Club events (e.g., Memorial Day in May;.
Power Boat Rendezvous; Golf Rendezvous, and Potlatch, generally in June, Fourth of
July; Labor Day, Stimson Trophy Race in September; and, Halloween Cruise in October)
can draw several dozen or more boats. The 3 -4 major annual events, each lasting for.
several days (including a weekend) include the Power Boat Rendezvous, Potlatch,. and
Stimson Race. [Exhibits 24., 130 - 132,.134, 166; Testimony Otorowski]
12. in recent years (20032005), the number of boats moored each day during
the Power BoatRendezvous and Potlatch averaged around 50 boats and visitors over 250
for Potlatch and in the 130165 range for the Power Boat. Rendezvous. The Stirrtson
Trophy Race is generally a smaller event, with fewer than 50 boats. Most SYC members
arrive by boat and parking on-site for .more than.. a few cars is typically needed only
during some summer weekends and major events. The large annual events have a
notable and atypically large demand for parking. During these events, the number of cars.
parked on -site routinely reaches. 20 or more; car counts have been in the high 30's with
maximum around 40. Except for those large summer events, it was relatively rare for
thereto be 10 or more. cars parked on -site on any day during.2003�2005. [Exhibits .130
132, 134, 166; Testimony OtorowSki 1
13. Other than the events < noted above,. there are few occasions each year
attended by 50 -140+ visitors: Attendees•have sometimes relied `heavily on cars rather
than boats for transportation (e.g., in 2005 " Ladiies Luncli ", 1.52 attended, 14 cars, 9
boats; Committee Meeting; 50 attended, 15 cars,. 0 boats; 2004 "Ladies Lunch ", 139
attended, 5 cars, 9 boats; Yacht. Club Employee Picnic; 80 attended, 12 cars, 7 boats;
Fishing Derby, 77 attended, 72 cars, 18 boats. [Exhibits 130, 132, 134]
14. The claim of some neighbors that there has been an increasing amount of
activity at the Yacht. Club in recent years is not. borne out by the. records of usage. The
years 2001 through 2005 had fewer boats and fewer visitors (2564 boats and 9280
visitors)` than was the annual average for the 11 year period from 1.994 through 2005,
The year 1997 -1999. saw the highest number of both boats (3696) and visitors (10,535);
1995 -1995 and 1996 -1997 were the next highest. [Exhibit 125]
Rules
15. The SYC has general rules for all its outstations and rules specifically for
the Port Madison. Outstation [Exhibit 1.29]. Abuse of facilities or violation of the rules
can. result in suspension or loss of outstation. privileges. Some of the Spargur Loop
neighbors noted that they have.found SYC unresponsive to their complaints. Resident
managers are `.required, as a provision of their employment; to call members' attention to
these rules as necessary and to report violations to the outstation committee chairmen for
appropriate action." The current resident managers (or "Caretakers ") at the. Port Madison
Outstation are, by all accounts in this record, capable and competent and have. good
.relations with both SYC members and neighbors.. However, it,would not be surprising if
"°policing" their vacationing employers could be a difficult and, at least. some times,. futile.
task for the caretakers [see public comments],
16. Both sets of SYC rules stress the importance of being a "good neighbor ":
to respect the rights and.privacy of others [see also PP 72, Exhibit 92]. Private parties,
fireworks, camping on. outstation :grounds and sleeping: overnight in. the Clubhouse, and
discharge of maririe'toilets are prohibited. However, there are no rules limiting hours
(e.g.; a curfew on outdoor gatherings, etc. ). Generators are not to be operated before 7
a.m. or after 10 p.m. .Members are not. to use "Loud hailers" except in ernergericies, but
they have been used for announcing organized races /games. [Exhibit. 129; Testimony
Grant; Woodard].
SCUP /CUP13042 Reissued 11/13/2606
Page 4 `or34
VICi %Ty
17. The surrounding neighborhood is dominated by single- family residential
use (there are 19 existing residences on Spargur Loop. Road [ Testimony Franz]), but there
are also recreational uses in addition to the Yacht Club: The undeveloped. parcel.
immediately adjacent: to the northeast is a small (.34 acre), undeveloped City park.
(T'Chookwap Park) [see Exhibit 1271; and the new six acre Spargur .Park is. to the
southwest.. Spargur Park is not open :yet, but the existing dock is expected to have public
use (see. dock in lower left in Exhibit 162, Springer dock in the center and boats moored
at the Yacht Club upper center]. Nearby to the south is the .Port Madison, Yacht Club
with permanent (year- round) moorage.for club members, a clubhouse, small boat storage
and launch facilities, and parking areas [see Exhibit 92. left side photo 106,1.. To the east
are single-family homes developed. on large lots. [Exhibit 71, Staff Report, :page 8;
Exhibit 164; Testimony Lande; Testimony Otorowski]
18. In the northeast, south of Port Madison Bay, NE Hidden Cove Road runs
east from the western side of the Island, west of Manzanita Drive, across. SR 305, and
terminates at Phelps Road in the vicinity of the subject site. Spargur Loop Road extends
directly north from Hidden Cove Road,: then: turns east in. front of the Yacht Club,
running west to`.east to Phelps Road NE [see Exhibit 152].
19. Spargur Loop Road [see Exhibit. 1361, classified as "Residential
Suburban ", has an estimated pavement width. varying between. approximately 10 ft. to 15
ft. [Testimony Tilghman; Franz]. The initial segment of Spargur Loop Road, from
Hidden Cove Road. north to the Yacht Club, has no curves and is wide enough for safe
two: waytravel. [136A -D]. Between the turn to the east in front of subject site [136T]
and intersection with Phelps. Road, Spargur Loop has two "blind" curves [13.6M R] and
some segments are too narrow (with roadside constraints e.g.,. adjacent to ditch or slope)
to all two .cars. to pass [136M]. Other segments of the road have sufficient width
(including unpaged "shoulders ") and visibility for two cars to safely pass each [136L;
137]. There are no formal traffic counts. on Spargur Loop Road, but volumes appear to
be quite low. Appellants' trafftc consultant estimated it might be less than 400lday. (At.
the ITE standard of 10 trips ldaylsingle- faimily.residence, the 19 existing residences on
Spargur Loop Read would be expected to generate approximately 190. trips /day.)
20. The vicinity is zoned R -2 along the waterfront (OSR -2 Comprehensive
Plan designation) and, further to the south, across. Hidden Cove Road, zoning is R-0.4
(OSR -0:4 Comprehensive Plan designation). [Exhibit 71,, Staff Report, page S]
21. Similar to much. (i.e.,. 82 %) o € the. Island, the: shore of Part Madison Bay is
developed. Also: similar to the rest of the Bainbridge Island, the. development is primarily
single - family residences. The. sheltered bay is popular for boating and structures for
accessing boats (piers, docks, buoys, etc.) are numerous; one. estimate is 70 docks
[Testimony Cheney]. There. are eight marinas. (i.e., piers and Boats with more than five
moorings) and many single - family residences have docks [see page. 3, Exhibit 31] for
personal use [see aerial photos page 19, Exhibit 31 or. Exhibit 110]. The "density" of
scuPICUP13042 Reissued 11/13/2006
Page 5 of 34
such structures (referred to as "modifications ") is the highest on the Island. with 14
modifications per 1,000 linear feet. [Exhibit 118A, Nearshore Assessment, pages. 37441
22. The Biological Evaluation prepared as. a part of the Corps of Engineers .
permitting process [Exhibit 311, describes the Port Madison Bay (or "Hidden Cove") as a
"small. shallow inlet about I mile in length and 1/4 mile wide, offering "protected
moorage ", with water depths ranging from 6 to 24 feet MLLW. Hidden Cove has
suitable habitat for bath migratory and resident marine fish with a. variety of adult and
juvenile salmon, trout and char. There are no salmon- bearing streams in the immediate
area, but:.adult salmon would be expected to be present April through October during
migration to other areas. This area has no commercial. shellfish grounds, but is a well -
documented spawning and holding area for Pacific herring. [Exhibits 31, pages 3 -8,
Figure 3; 118A, Figures B17 B27]
PROPOSAL
23. The major elements of the proposal are to reconfigure the existing dock
and to convert the Springer house and dock for use in a small boat sailing program. The
proposal has been revised since the original submittal, with an appreciable reduction. in
the length .of both proposed docks [see Findings. 25,. 2G, 36 and 371.: The individual
elements of the proposal are listed here [see locations numbered on site plan, Exhibit.
105] and :discussed in subsequent Findings.. [Exhibit: 71, Staff Report,. page 1; Exhibit 3,
Application, Section I; Exhibit 56 (site plan); Exhibit 57 (landscape plan); Exhibit 66;
Exhibit 106 (Springer house); Exhibits 1.13 and 66 (moorage /pier renovation); Testimony
of Machen; Layton, Haugan]
(1) Refurbish and convert (Springer) house. (2 meeting rooms, bathrooms., support areas,
boat storage and maintenance area) for small boat sailing class use.
(2) .Rebuild (Springer) dock (replace old:float) for small boat sailing class dock.
(3) Reconfigure and add slips to existing main dock to accommodate wider boats:
(4) Replace the emsting.septic system.
(5) Formalize parking areas.
(6) Build a deck adjacent to the BBQ pavilion.
(7) Construct garage (for the caretaker).
(S) Relocate -playground equipment to create view corridor from the street.
(9) Plant vegetation buffers.
(10) Upgrade outdoor lighting.
(11) Upgrade..existing restrooms.
24. As required mitigation [see. Findings 24 and 661 46 creosote piles, a..
grounded float, and a tidal grid adjacent to easterly fixed pier,. Would be rern &ed.
Reconfi re Existing, Moora a ( #3 on Exhibit 105)
25. Reconfiguration of the existing 12 slip moorage [Exhibit 92: PP 57601 is
proposed in order to have slips that. can accommodate wider boats Q. e., two large boats in
each slip). and two slips would be added. The existing. dock:was designed in .1967 and, as
boats have gotten "beamier (wider) since that time, it is not uncommon for two modem
(large) boats to not fit inside the existing (31- �34�ft. wide) "U" shaped slips.. The modular
docks are to he reorganized: relocating some existing. finger floats and reconfiguring the
sCUPICUP13042 Reissued. 11 /13/2006
Page 6.of 34
slips. A new walkway Q-ft. wide and 91.5 ft. long) would be added, creating two new
slip's. The number of slips would still be 12 slips, but.the widths would be increased (31-
ft: wide slips increased to 34 ft. and 34 -ft. wide slips increased to 40 ft). The overall
length of the moorage would extend westerly beyond the. end of the existing dock by an
additional 915 ft. The existing 4 ft. X 34.ft. wood gangway [Exhibit 92: PP 57 -59;
Exhibit 152, PP 147] would be replaced with a fully grated 4 ft. X.50 ft... aluminum
gangway with .a new landing built on steel piles. tExhibit 113; Testimony Qtorowski;
Haugan;. Layton]
26. In .the original. submittal the reconfigured. floats were proposed. to extend
about 100 ft, farther west than the existing structure; with finger piers 50 ft. long. With
those proposed alterations, and those originally proposed for the Springer dock [see
Finding 37.], the ends of the two structures would have been approximately. 85 ft. from.
one another. The revised (current) plans have the ends of the structures approximately
155 ft. apart. [Measurements scaled from Exhibit 3, Section. 5 and Exhibit 113, Sheet 5]
27. With the moorage "reconfiguration". project, old creosote piles and stubs.
would be removed [see e.g-.,. piles and stubs see Exhibit 1531 PP 15.1, Exhibit. 152, PP
1351. Approximately 45 creosote piles (including those to be removed from Springer
property) would be removed and disposed of in an approved upland site. No creosote
treated plies would be used in the new construction. The. new .piles would be steel and
new floats would be concrete with encapsulated foam. [Exhibits 31; 113:; Testimony
Cheney]
onvert Springer He se & Dock @I and #2 on Exhibit 145.
Sailing Program:
2& The overwater location (with the deck and shop :on the lower level of the
building) provides unusual and very important direct water access [Exhibit 92: PP 30, 39;
Exhibit 35, page 3]. The Springer house would be renovated and the dock replaced for
use in a small boat` sailing program [Exhibit 35, page :3]. The Club would provide
organized small boat sailing classes (possibly in concert with the Parks Department
and/or the Port Madison Yacht Club) with..a dedicated sailing program manager. They
are.intending to use "420'sg' (a two - handed sailboat 13-ft. 9 in. long, 5 =ft. 5. in. wide and
weighing 230 lbs.). SYC currently has. eight of these boats. It. is anticipated that sailing
classes would have two students per boat and. one. instructor. As, the dock would hold as
many as 12 small boats, the maximum class size ;would be 24. [Exhibits. 1.13; 120;
Testimony ofOtorowski; Testimony Leadbetter; Testimony ofHaugan]
.29. The SYC's main facility at Portage Bay in Seattle: has an extensive small
boat sailing program (including .a year - round director; a Bead coach for the sailing team,
and 12 -15 summer instructors). There are over 25 sailing classes for kids 74.8 that are
open to SYC members and non - members on a. first-come-first-serve basis .(about half the
enrollees are non- members). Classes are of 1 -2 week duration with different size boats
and different age groups. The. Portage Bay sailing program, with a total of over 360
enrollees, is much larger than that envisioned here: [Exhibits .115; 118F; Testimony of
Otorowski; Leadbetter]
SCUPICUP13042 Reissued 11/13/2006
Page 7 of 34
30. It is SYC's intention that the .Port Madison Outstation.prograrn would start
with. a two -week, five days per week class 'held during daylight hours. The Club's
spokesperson credibly testified at hearing that they won't know more about the number
of classes until. they: get started and. can gauge the demand, but would like to begin with a
two -week class similar to that of the Port. Madison Yacht Club [see. Finding 331, Class
sessions would be held between 10 a.m, acid 4 p.m. and might be half -day or whole;
[Exhibits 35, page 3; 113, Sheet 6; 145; 11.8F 124; page.3; Testimony Otorowski]
31: Classes would not be held when they could conflict with scheduled Yacht
Club events. The classes. would be open to non - members. (SYC anticipates reserving
50% o class space for non - members, and. the.: Director recommends a Condition to require..
it.) The Club would .also like to host or co -host regattas or other small boat sailing events.
(e:g., the "John. Adams. Cup held by Port Madison Yacht Club, sailing seminars, guest
speakers. [Exhibits 35, page 3; 42; 71, page 5; 116; 118F, Testimony Leadbetter;
Testimony Haugan]
32. Sailing skills are taught. with a combination of on- the -water practice and.
lessons off the water. The initial description [Exhibit 3;. Section 3], indicated a classroom
on the first floor and "a..general.meeting room" on the upper floor. The tentative floor
plan now shows two "meeting" rooms which could serve as the "Classrooms" for
teaching skills and theory (e.g., steering, sail trim, docking, rigging, knot tying; water
safety, etc.) that the students would practicelapply on- the - water. (The on- the -water
lessons could. include launching, retrieving, and storing small boats.) [Exhibits 35, page.
3; 115; Testimony Otorowski]
33, Small boat sailing classes are offered at many locations throughout Puget
Sound, On Bainbridge Island, the nearby Port Madison Yacht Club (f'MYQ has a.
popular small boat sailing program for kids. PMYC has two -week, Monday through
Friday "bring your awn boat." classes, run.by volunteers,. involve 60+ kids and are usually
full (with a waiting list). The Park District also offers classes (mid -June to mi&August;
minimum enrollment 3, maximum 8-12;. held in 3 -4 hour daily sessions; Monday through
Friday). Students enrolled number between 300 arid. 400 and some classes are fully
subscribed [Exhibits. 42; 116; 118D; 167; Testimony Otorowski; Testimony Llewellyn]
Structures:
34_ The Springer house is an unusual overwater structure. The original
structure, built in 1955, was a shop with high, open ceilings; with a deck connected to the
pier extending into Part Madison Bay [Exhibit 92. PP 18 -22]. The large: shop space
(approximately. 26 ft. by 40 ft.) would be used to store the boats used in the proposed
small boat sailing program. This large open room has enough space fora dozen small
sailboats, as well as room for a sail Ioft and work area: [Exhibit. 3, Section 3; Exhibit
1.06]
35. Living quarters were added on top of the original shop to create a
residence. This upper level has several bedrooms, a kitchen; bathrooms, and living room.
Plans show the space converted into two "meeting rooms" (approximately 26' by 23'9"
and. on the order of 20' by 35'),. a large storage room (approximately 20' by 14'),
reconfigured restrooms, and the kitchen retained .in its present location.. The windows
SCUP /CUP13042 Reissued 1111312006
Page 8 of 34
and upper deck, overlooking. the dock and water, would provide observation areas.
[Exhibit 3, `Section.3 ; Exhibit 1061
36. The floating dock, which is in extremely deteriorated condition [see
Exhibit 92: PP 25 -26, 47; Exhibit 92, PP 131; Exhibit 154; Testimony Machen; Haug-an],
would . be replaced [Exhibit 3, Section 31: The pier has relatively new decking [Exhibit
92: PP 21, 30, 34], but the .old. wood float and gangway are extremely dilapidated [see
Exhibit 1.5..4; Exhibit 92: PP 25-26, 47:; 1.311. The gangway (4 ft; by 3:4 ft.) and float
(1372s "ft., see Exhibit.145; Testimony Grant) are proposed td' be replaced with a fully
grated aluminum gangway (6 ft wide by 55 ft long) and a rectangular concrete float (20.
ft. wide. by 110 ft. long) with steel pile guides [Exhibit 31, page '1; Exhibit 1.13, Sheets 5-
6]. Half of the floating pier surface would have light permeable grating at. least 60%
open. A hand- operated crane would be fixed on the float to move boats into and out of
the water. The dock would have capacity for twelve "420 .Class" sailboats (six on either
side, and one "chase boat" (up to 2b -ft, long) at the end of the dock, The project would
include removal of existing creosote piles. Steel or ACZA treated piles are proposed as
replacement piles. [Exhibit 113, Testimony Cheney; Haugan; Layton; Grant]
37. The gdginal .submittal [Exhibit 3,. Section 5; Testimony Layton] proposed
an 80 ft: long gangway and a 30 ft, by 130 .ft. floating pier with four slips `on the west
side, each 31. ft. (extending approximately 50 ft. farther into the Bay than the current
proposal).
Other Cam onents
.3:8. Septic System:. A new drainfield is proposed :in the southeastern part of
the site, south of. the driveway and west of the. road [see outline drawn on Exhibit 107;
location shown on Exhibit 15 .is the existing drainfield]. The new drainfield would serve
the old Springer house. Although :little or no use would occur there. in winter, the
drainfield would be sized for daily peak.use of 20 to 40 persons. The drainfield would be
located outside the wetland, wetland buffer, and 100 ft. well setbacks. [Exhibits 3,
Section 10;. 34; 151; Testimony. Ostoy]
39. The drainfield system design and location. rriust be approved by the Kitsap
County Health District [see Finding 481. A building site application was filed with the
District in April 2006 [Exhibit 70],
40. Parking ( #5 on Exhibit 105): The proposal includes "formal" parking areas
to .accommodate parking demand. % associated with .large events [see Finding 12]. Fifty
parking spaces are 'enumerated in the site plan [Exhibit 107]: eight 'in . existing parking
area adjacent to. Clubhouse; 26 spaces . east of the Caretaker's residence next to the road;
and 13 . "overflow" spaces west of the.. Caretaker' s. residence.. (A space at the end of the
driveway at the Springer house is designated for handicapped parking, but. is not
numbered.) The three space& noted in the proposed caretaker's garage [see in Exhibit
1451 should not be counted as available to meet visitor parking demand.. The maximum
number' of visitors' vehicles that could be accommodated on -site by the proposed. parking
areas would be 47 (48 if the handicapped-designated space at the end of the driveway is
counted).
SCUPICUP13442 Reissued 11/13/2006
Page. 9 of 34
41. The parking area west of the road would be :graveled anti the "overflow
parking" area west of the Caretaker's residence would be covered with `°grasscrete" or
similar,. pervious material. The driveway to the Springer house. [see e.g.,. Exhibit 92; PP
39, 40 47, 43] would be a one -way loop around the overflow parking area, with a wider,
two -way section extending to the house where trailered boats could be launched from the
small boat dock. [Exhibit. 57; Testimony Haugan].
42. BBQ_ Deck ( #6 on Exhibit 105): A deck would be added. immediately
adjacent to the barbecue/pavilion [see PP 46 Exhibit.92] providing an additional location
overlooking the water. [Exhibit 3, Section 3; Testimony. Haugan]
43. Gara &e (#�7 on Exhibit 105) The Yacht Club has a fulltime :resident
caretaker. The caretaker has for many years used a makeshift, tarp covered structure - as a
garage [PP 4 Exhibit 921. The proposal includes.. removing this structure. and replacing. it
with a permanent residential garage (approximately 900 sq. ft), providing covered
parking, workshop space, and lawn equipment storage for the caretaker. [Exhibit 3,
Section 3; Testimony Haugan]
44. Plgy EgWpment ( 98 on Exhibit 105): The existing "playground (play
equipment and sport court; see Exhibit 92. PP 52, 80, 82 -841 is located near the
Clubhouse,. close to the road just south of where Spargur Loop Road turns east. The
brightly colored play equipment is .quite noticeable when traveling west on the road and
making the left turn where the road changes direction in front of the Yacht Club [see e.g ,
Exhibit 136SI. The playground would be relocated and the current location would be
reseeded as lawn. The plans [Exhibit 56] note this as aft "Improved View. Corridor''.
[Exhibit 3, Section 3; Testimony.Haugan]
45, Vegetative Buffer (49 on Exhibit 105): A. 25-ft. wide buffer adjacent to the
road would be .landscaped to the "Partial Screen standards of BiMC. 18:85.070. The
plans include retaining existing mature trees, the entry garden, and the rock garden [see
e.,. Exhibit 92:: 88, 89,.951 Until the new landscaping matures, the laurel and Photina
currently planted along the street frontage [see behind split -rail fence Exhibit 92: PP 73-
74, 78, 79, Ul, 88,901 would also remain. The roadside buffer and. the shrub buffer
between the street side parking lot and the Caretaker's residence, would be landscaped
with native .plants (including. 4.1 trees, 138 shrubs, and 1600 ground cover plants).
[Landscape Plans, Exhibit 57; Testimony Haugan]
46. U pgrade Li htin and Restrooms ( #11 on Exhibit. 105.). The restrooms at
the top of the gangway to.. the main docks would be upgraded (convert to low -flush
toilets, etc.), The outdoor lighting would also be upgraded and there has been City
architectural review to assist with designing it. [Testimony Haugan]
IiDMCrOR's REVIEW AND REC01i MNII)ATION
47. PCD received the subject application on March 8, 2005 [Exhibits. 3,. 7, S;
Exhibit 7l, page 81. Qn March 28, 2006,. the :application was deterrniri. to be
technically complete [Exhibit l I], but the. Yacht Club was required to provide additional
information. Notice of the application and of the SEPA comment period was published
on April 9, 2005 [Exhibits 15 and 16].
SCUPI.CUP13042 Reissued 11/13/2006
Page 10 of 34
48. The Director .distributed the application and. related documents (including
environmental checklist :and .other studies) to City departments and other agencies
[Exhibits 4, 12; 37, 46, 47, and 58]. The comments received are summarized below.
[See also PCD summary of comments; .Exhibit 71,. pages 9 -10].
® B. 11. Public Works Department [ Exhibits 35, 43, 59, 63]; Certificate of
Concurrency regarding adequacy of affected intersections. is not required. [See also
Finding 81.] The proposal, as revised, incorporates sufficient IoW impact
development techniques to make storm. filter device not required. (Stormwater
management plans must meet City standards and be approved by Public Works.)
- B. L Fire Department [Exhibits 24, 39; 48]: Standpipe system must be. exterided
to the new portion ofthe main. dock- improve driveway to accommodate: emergency
vehicles;. install fire extinguishers in the Springer Building.
- Kitsap County. Health District [Exhibits 10, 44, 70] Septic system. design
conditionally approved; building site application must be filed and approved [see
Finding 39];. must show all existing facilities. and identify 1I1 uses and daily flows.
WA Department fish & Wildlife [Exhibits 30,501 "FW concerned about
impact of aver -water structures. Size of floats should be minimized to avoid or
mitigate .shading ;. floats and piers over 6 ft. wide should be grated with. 60 % opera
area; should have in -kind mitigation (or small structure with shading impacts
mitigated) and/or compensatory mitigation [see Finding 67. No work is .allowed
waterward of ordinary high water line. during fish. closures for juvenile salmon and
spawning of surf smelt and Pacific herring [see HPA, Exhibit 74]. Use concrete;
steel, plastic. pilings rather than arsenic treated wood. A mitigation plan should be
required.
Wry Department Natural Resources [Exhibit. 17] DNR will need survey of new
float` configuration and amendment of tideland lease [see Exhibit 108]; questioned
emergency spill preparations [see. Exhibit 54] and provision for public access;
referred to Health district concerns [see above]; and, requested measures to protect
eelgrass beds. in the vicinity.
® Suquamish Tribe [Exhibit 25] Concerned about development impact on habitat,
stormwater, and cultural. resources. Impacts on aquatic resources originating in
uplands should . be avoided or minimized; recommends several. measures that are
included in the proposal (e.g., retaining native vegetation,. using permeable pavers,
minimizing impervious area,. and having trees included in vegetative enhancement).
Requests cultural resources survey if native snits are to be disturbed by
construction.
49. During. the Director's rev lew of the subject application, several public
comments were received [Whitlow and Clayton, Exhibit 19; Robertson, Exhibit 21;
Mahlum and Franz. [Exhibit 22]. These concerned neighbors oppose the proposal
because of anticipated. increases in traffic. and noise. They consider the small boat sailing
program as representing a change in use from water -based to lanai -based (because sailing
class attendees would come by car rather than by boat), with associated adverse impacts
SCUP/CUP 13042 . Reissued I IIIV006
Page 11 of 34
on the immediate neighborhood. Some specific concerns and suggestions in the public
comments include the following. [See also P.CD summary of commments, Exhibit 71,
pages 9 -1 oj.
® 'Traffic analysis is not an accurate assessment of impact frorn daily sailing classes..
There would be more impact than assessment indicates'.
'Too many parking spaces are proposed relative to those needed for sailing.classes.
Driveway entrance should be. moved (south.) closer to Hidden. Cove Road to lessen
potential for conflicts with residential traffic.
With "increased dock space" there will be increased disturbance from more attendees
at noisy boating parties and. SYC events.
Public access should be increased (make parking areas available for those using
T'Chookwap. Park; require public participation in sailing classes; provide public boat
launch or viewpoint).
Club should (re)pave entrance, have limited or no signs; make better effort to enforce
rules, and "compensate" neighbors by granting access to outstation facilities.
■ Some support the vegetative buffer, replacing tent- structure with garage, and .moving
play equipment (to improve view from the street).
50.. The Director evaluated. the proposal's compliance with applicable
regulations [Exhibit 71, pages 1.1-17]. Pertaining to the SCUP these sections of the Code
were considered.: BIN4C 16,12.050, Archaeological and historic resources; BIMC
16,12.060; Clearing and. grading; BIMC 16.12:470, Environmental impacts; BIMC
16.12.080,. Environmentally sensitive areas;. BIMC 16.1.2.090, Native Vegetation Zone,
BIMC 16.12.110, Public access, BIMC 16.12.140, Environmental; designations; BIMC
16.12.180, Boating facilities; BIMC 16.12,340,. Piers, docks, recreational. floats; and,
BIMC 16.12.380 Shoreline Conditional Use Permit decision criteria.. Pertaining to the
CUP, consideration included: B1 MC 1.8:30, R72 zone uses; BIMC 18.81, Parking: and
access; BIMC Landscape requirements; and BIMC 18.108, Conditional Use Permits.
Compliance. with'the Critical Areas Ordinance, BIMC 16.20,090 Wetlands and streams;
was also reviewed. The Director's analyses are, unless contradicted by specific Findings
in this document,. hereby adapted. as Findings by reference,
I. The Director determined that the proposal would comply with the
applicable provisions of the Shoreline .Master Program and the provisions of the R -2
zoning and. concluded that, if conditioned as recommended [see pages 3 -6,. Exhibit 711,
the application would meet, the criteria for granting both a. CUP- and a SCUP. The
Director has recommended approval with conditions [Exhibit 71, page 181
52. The Director also concluded that the proposal, as conditioned, was not
likely have significant unavoidable adverse environmental impact, and issued a Mitigated
Determination of Nonsignificance. This determination included 20 conditions that the
Director found necessary to mitigate potential impacts [Exhibit 71, pages 3 -6.]. Those
conditions include requiring: in -water construction limited to the: appropriate "Fish .
windows" to protect. Chinook salmon and Pacific Herring;. appropriate erosion and
SCUPICUP13042 Reissued 1111312006
Page 1..2 of'34
stormwater controls; revegetation; design of septic system to . meet all Health District.
standards; all exterior lights to be shielded/hooded to prevent off -site glare; protection of
wetland and its buffer; removal and proper disposal of creosote piles and other debris, use
of non - polluting pilings; inclusion of grating on floats;. spill .prevention and containment
measures; and, other actions to avoid pollution.
.53. The Director's revised SEPA. threshold determination {Mitigated
Determination of Non-Significance, MDNS] was issued on April 3 2006 [Exhibit 62]..
The MDNS was appealed on April 18; 2006. by Edward Mahlum and Hillary Franz, Dan
and 'Priscilla Lavry,. Carol. Corbus; Gary Quitsland and Linda Whitehead.,. William and
Sandra Shopes, Toni Fehsenfeld and Janet Knox, and Thomas Herrick Robertson and
Johanna Vanderlee [Exhibit 721.. PCD Staff Report [Exhibit Tl] was issued April 18,
2006.
PUBLIC HEARiNG.REGARDiNG PERmrr. APPLICATIONS
54. Notice of the public hearing on the CUP and SCUP applications was
properly given with posting; mailing; and publication completed by April. .12, 2006
[Exhibit 671.
55, The SEPA threshold determination appeal and the public hearing on the
conditional use applications were consolidated.. The consolidated hearing began an June
1, 2006. During the. public comment portions of the. proceedings, 20 citizens gave
comment and testimony. The hearing .continued on June 2,-.2006 June 23., 2006, and
concluded on July 14, 2006, The record,. with testimony from 17 witnesses and more
than 170 exhibits, was closed on August 8, 2005 with receipt of post-hearing submittals.
56. At. the hearing, the Director's representative provided a summary of the
Staff Report (Exhibit 71] and the. Director's recommendation,. including conditions. The
Yacht. Club's representatives concurred with the Director's recommendation and did not
object to. the Director's recommended conditions. [Testimony Machen; Qtorowski;
Haugan]
57. Written comments were received from a number of individuals during the
time this. matter was pending before the Hearing Examiner and during the public hearing
many individuals also gave oral testimony.. All comments, written and oral are included.
in the record and were. considered in the preparation of the conditional use permit
decisions. Concerns and comments are summarized below.
Positive comments: Several residents on Spargur Loop Road. [Dimmick, Exhibit
79; Powe1, Exhibit 85; Thompson.and Paine, Exhibit 901 wrote that they do not object to
the proposal and advised that they believe the Yacht Club is a good neighbor` "always:
been cooperative . and responsive... a very good neighbor....plans will benefit our bay
and... the kids who... learn to sail" "have. lived on Spargur Loop Rd since 1957 -8 .. _ a
good neighbor "; "have never had. a problem with S.Y.C.. -... don't expect any (...permit
is granted ". Another neighbor (on Spargur Loop Road since 1972) wrote that "...while.
traffic due to club activities has. increased on a limited :lumber of occasions each. year it
has not been an inconvenience not a bother..:" [Grant, Exhibit 80] A resident of Port
Madison .and member of the Yacht Club [Harriman; :Exhibit 1581 wrote in favor of the
SCUPICUP13042 Reissued 1.111312006
Page 13 of 34
proposal and noted about Spargur Loop Road that: "The approach to the Y. C. is straight
and short from Hidden Cove Rd.. Similar.comments were made at hearing, including the
observations that use. of the bay and open -water moorage has generally increased. and
SYC. should not be blamed for it. [Testimony Roth;. Hammer] Jim Llewellyn,
Commodore of the nearby Part Madison Yacht Club, noted that Port Madison's program
is full and spoke in favor of the proposed sailing progam, as did resident and Yacht Club.
member J. B. Gifford.
Ne ativ comments; The majority of written comments came from those who
anticipate adverse impacts and oppose. the proposal [Compton, Exhibit 24; Martof,
Exhibit 86; Ciamon, Exhibit 87; Upton, Exhibit 93; Frahm, Exhibit 94; Quitsland, Exhibit
97; S. Shopes, Exhibit 102; W. Shopes, 103; Whitehead; 121; Savett, Exhibit 124]. one
writer from across the Bay [West, Exhibit 1001,. opposes the proposal because he believes
the SYC intends a "resort type facility ", but would not object if expansion were limited to
"active sailing uses ". Testimony at hearing included similar concerns [Testimony Jaffe;
Upton; Lavey; LaSof; Quitsland;. Gibbons, Carr; West; Patterson; Bremrrter; FranzI
Issues raised in comments included:
Proposal ( "commercial expansion ") is inconsistent with residential character
of the Spargur Loop neighborhood.
As it is a "Conditional Use ", it shouldti't be allowed to expand.
® Spargur Loop Road is a "one lane
traffic associated with the proposal..
quiet neighborhood:
country road" unable: to safely handle
Increased traffic also would disrupt the
• Yacht Club vehicle traffic around large events affects . safety and quality of life .
in the immediate neighborhood.
• There is increased traffic congestion on. the water; new floats would decrease.
open space area and. increased dock space means more (and bigger) boats in
the bay.
• Extending floats would partially block. public access. to dock in the new
Spargur Park.
• Yacht Club boaters have been responsible for fuel and oil spills; more and
larger boats would mean more pollution.
m Yacht Club large events can be very noisy and disrupt the quiet of the
neighborhood.
Concerned about water quality effects. including. increased run -off (from
parking areas) and adequacy of water supply and waste water treatment.
Algae blooms in Bay are increasing in frequency and severity;. blames
"transient. boats' fbr water quality problems.
Current parking is inadequate for many SYC .functions.
Existing exterior lights, with glare reaching. l/4 mile, are inconsistent with
residential neighborhood and should be replaced.
aCUPICUP13042 Reissued 11/13/2006
Page 14 of 34
• Club expansion would lower residential property values.
• Yacht Club. will not enforce measures imposed to mitigate impacts.
58. Several written comments focused criticism on the assessment of
environmental impact relative to natural resources. Janet Knox, a geologist; was critical
of the lack of specific design for the proposed new septic system and noted impacts she.
thinks could occur if the system .is not adequate [Exhibit 881. Toth Davis focused on the
need for mitigation to address: runoff from parking and landscape areas; debris removal;
cumulative effects (new structures parallel to shoreline and increased shading); and, dock
lighting [Exhibit 981. Jim Brennan, a professional marine biologist, advocated that the
proposal should be denied because the impacts related. to overwater structures have not
been adequately mitigated and cumulative impacts have not been identified [Exhibit 99].
59. One of the representatives of the SEPA appellant group, submitted a
lengthy and detailed written comment, including; legal argument, opposed to approval of
the conditional use permits, [Exhibit 118, Franz]
60: Some. comments, both written and given in person at the public hearing,
suggest a considerable distrust of the Yacht Club and/or misunderstanding about the size
and/or nature of the current proposal. Comments reflecting distrust and/or
misunderstanding included statements that: SYC "actually has in mind a. significant
expansion to create a more resort type facility "; "changing a single family residence into
a resort type recreational facility "; "expand it to be an event center "; "an entertainment
complex on the water to which no sewage system. is available "„ "conference.rooms that
presumably will double as dining rooms" Exhibit 97; proposal includes a "new parking
garage ". [See e.g., Exhibits 86; 93; 94; 140; 121; Testimony West; Corpus]
61. Other comments reflected an antipathy apparently sourced. in past
unpleasant experiences and/.or conflicts with 5YC or some of `its members: "The club
adds nothing to the neighborhood except. traffic, trespassers, and noise.... no intrinsic
value of any kind ";. "the club has historically been unfriendly "; members are "elite city
folk"; use of bull horns; loud music and overall drunken revelry well into the night
[See e.g, Exhibits.97, 124 Testimony ofLaSof; Lavry; Quitsland].
ENVIRONMENTAL LWPACTS AND MITIGAT10N
Marine Environment
62. Construction activities in and over the water can adversely affect marine
habitat and wildlife. Overwater structures reduce ambient light conditions. (shading)
which can have negative impacts for both vegetation and animals. The proposed dock
changes have the potential for both .construction and shading impacts: [Exhibits 50.;
118B; 118L]
53. The Biological Evaluation (BE) [Exhibit 31 ] for this project was prepared
by a qualified and experienced /Marine JMologist [Exhibit 1471; in conformance with the
Army Corps of Engineers guidelines, to assist the Corps. in conjunction with Endangered
Species .Act (ESA }. review of the. proposal. The BE:. included an underwater survey,
review of appropriate literature, and analyses of existing site :conditions and potential
impacts. The. surveyed area has homogenous conditions, very low plant density and little.
SCUP1CUP13042 Reissued 111.1312005
Page .15.of 34
species diversity. No eelgrass was observed within the project site, but some "patchy
distribution of eelgrass has been reported outside. the project area. [see also page 39 and
Figure B -24]: There is a "moderate quantity" of typical organisms for shallow waters
and intertidal areas. [Testimony of Cheney] The Corps has deemed the. BE complete
except for receipt of-copies of the HPA Arid shoreline permit and information as to the
size of the piles and if they would be coated [Exhibit.150.j
64. The revised BE [Exhibit 31, dated. September 200.51 identifies "listed
species" and prey of listed species and impacts associated with the construction involved
in. the relocation Arid replacement of piers and floats. The. BE has. "determination of
effect" for the listed species. The determinations include. Puget Sound Chinook: "may
Affect, not likely to adversely affect" and. the Puget found Chinook habitat: "no
destruction or adverse modification ".. The BE [pages. 13 714] summarizes "net effects" as
follows:
... baseline .conditions within the action area should not be altered... There are no
interrelated or interdependent activities. associated with this construction. Short -term
and long -term. effects. on listed species are high unlikely. Construction should. have
n6 adverse. effects on listed species. With the:minor exception. of the area of driven
piles, shallow.subtidal habitats will be physically unmodified. There: will be a minor
increase..(437 sq `ft) in overwater coverage. Potential primary production beneath the
proposed floats should not be significantly.altered by shading... Removal and.
replacement of existing; creosote- treated piling and timbers will remove: a significant
bip- hazard. .
65. The Essential Fish Habitat (EFH) Assessment [Attachment A to the BE,
Exhibit 31] concludes that the project, taking place in shallow subtidal Habitat at
elevations of approximately -6 to -14 NMLW, would have: "a minor temporary adverse
effect" on salmon and ground fish habitat and no significant effect on coastal pelagics
(e.g, anchovy, sardine) would be likely. Adverse. effects would be limited to
"displacement or removal of non- motile. invertebrate fauna beneath the areas of driven
piles.
66. The Washington Department of Fish and Wildlife (WDFW) has issued a
Hydraulic Project Approval (HPA) for the proposed gangway, pier and float construction
projects [Exhibit 74]. The approval includes a number of conditions including restricting
work below the ordinary high water line to avoid juvenile salmon migration and to
protect herring: spawning beds (.e.,. no in water work allowed between January 15 and
June 14). Other conditions include: erosion control; preservation. and.. protection of fish
and habitat; grating required (60% open) on floating. docks (50 ° /a) and gangways (100 %),
and no storage allowed on the grated. areas. The HPA also approves and requires, as
initigativn measures, the. proposed removal of the creosote piles, grounded floats,. a tidal
grid adjacent to easterly fixed. pier, and the existing Springer dock. .(The removal of a dry
dock platform from the Spargur. Park dock is also required in the HPA, but removal has
already been completed by the Park District.) [See also Conditions 6,12-17, 22 -23,1
67. Shallow subtidal habitats are. impacted by overwater structures Potential
impacts include "shading, propeller wash, bioturbation from sea stars... and ... changes in
rnacrofaunal assemblages.... sediment. composition, and benthic. vegetation." Piers and
SCUPICUP13042 Reissued 11/1312006
Page 16. of 34
floats cause shading and. WDFW recommends that impacts be `avoided or mitigated by
minimizing the width and length of piers .and floatis and requiring those over 4 -f1. wide to
have grating on at least 50 % of the surface area with at least 60 % open area. WDFW
noted that shortening of the small boat dock would reduce shading impact and would be
appropriate mitigation. (WDFW also noted that with shading impacts significantly
minimized, compensatory mitigation (e.g., removal of piling) could "mitigate for the loss
of benthic habitat.." [Exhibit 501
68, Potential change in the amount of overwater surface area coverage was
disputed. Original estimates (in the Biological Evaluation and Site Plan drawings).
indicated. a net increase in coverage on the order of 437 -440 sq. ft. [Exhibits 31, page 2;
113, Sheet 31. At hearing,. the Appellant presented calculations indicating a net increase
in overwater coverage of 2,:142 sq. ft. Q.e., 10,819 sq, ft, existing, to 123961 sq, ft.
proposed) [Exhibit 140.; Testimony Michak]. The Applicant's "corrections" to
Appellant's calculations (i.e., correcting for actual size of the existing Springer float, not
counting sailboats as coverage,. and grating at. 100% "credit ") produced an estimate of a
net decrease in coverage of 135 sq. ft.. (from 10;819 5q. #f. existing, to 10,684 sq. A.
proposed) [Exhibit 146;. Testimony Cheney].
69. Taking into consideration the information and explanations presented at
hearing [including Exhibits 50; 31; 113; Sheet 3; 11`8A and B; 140;.1.42; 144; 145; 146;
Testimony Grant; Michak; Cheney], the calculation of net o�erwater surface area
coverage should include the following. factors:
(a) Existing surface coverage of 10,819 sq. ft. (includes 116 sq. 1t.. for submerged
float, but not 240 sq. ft. for City dry.dock);
(b) 772 sq, ft. adjustment for actual size of the existing Springer dock coverage
(i.e., 1;372 sq. A.);.
(c) Light permeability: new pier calculated at 50 %.. of surface grated and 60% of
that as permeable /open, and fully grated gangway:considered 100% open. (i.e.,
the gangway total is. 443 sq. ft. as per Exhibit 113,. Sheet 4);
(e) Area of sailboats tied -off at the moorage (i.e., 17031 sq. ft:) is not considered
"coverage
70. The proposal represents a net increase in overwater surface coverage
totaling 339 sq. it. The. calculation of this change, based upon the factors. noted. in
Finding 69, is:
11,930 sq, ft. Proposed ( "c" "d" 12,961; 1,031 subtracted.for "e ")
- 111591" % ft. Existing coverage "a" above, adjusted for "b"
339 sq. ft. Increase in overwater coverage.
71. As indicated. in Exhibit 120, small sailboats are often .stored on. floats at.
right angles. If this was done on :the small boat dock, some. of the light permeability
provided by the grating would be lost. To ensure the. mitigating effects of grating are
maximized, when. classes are not in. session the boats should be stored inside the building.
It would. help minimize shading impact .for boats to not tie stored on the float during the
5CUPICUP13042 Reissued 11/13/2006
Page.. 17 of 34
off season or during Breaks between classes.. When they are left on the float, the boats
should be centered on the solid,.. non - grated sections of the float. [See Condition. 3 11
72. Removal and proper disposal of 46 creosote piles and. stubs, and a tidal
grid by the eastern pier is mitigation required by the HPA.[Exhibit 74] and Condition 12
of this decision. [See also Exhibits 31, page 2; 74, page 2, 1.13, Sheet 31
73. Eelgrass beds should.not be affected as none are present in the preject area
where pilings would be. removed. and/or replaced, nor would any eelgrass beds be subject
to coverage. by the proposed location or replacement of piers or floats. [Testimony
Cheney]
74. The most effective means of avoiding and/or mitigating. impacts
associated with overwater coverage is to reduce the amount of that coverage [Exhibit 50;
141.]. The length of the proposed docks should be reduced and the structures
properly `.grated to accomplish a substantial net decrease in overwater. coverage
[Finding 70.1, avoiding adverse. impact expected from.the docks as proposed and reducing
the outstation's total overwater coverage.
a. To. avoid impacts associated with increased (and cumulative)
overwater coverage, the length of the small boat dock should be reduced from
the proposed 114 ft., to 90 ft. [Condition 1]. This reduction would result in this
dock. having overwater surface area of 360 sq. ft. (i.e.,. 90 ft.. long by 20 ft. wide =
1,800 sq. ft:; @.50% grated = 900 sq. ft.., @a 40% solid = 360 sq. ft.). This would
be a substantial decrease in net overwater coverage from the existing conditions
(Le.., old Springer dock coverage is 1,372 sq. #t. and reduced dock length would
result in 360 sq, ft. coverage 1;012 sq. ft.. less coverage than existing). The
decrease in dock length would also mitigate the potential. for this dock.
interfering with access to and from the Spargur Park public dock [see
Finding 86]. At the reduced length of 90 ft., the small boat dock. could
accommodate ten boats (fie on each side) rather than 12 boats as proposed. This
would mean maximum size :of sailing classes reduced from 14 to :10 and
provide a commensurate decrease in the likely number of vehicle trips
[Conditions 1 and 31].
b:. Reducing the proposed extension of th.e:main dock from 91.5 ft. to
46. ft. would: mitigate (reduce) construction impacts, total overwater surface
area coverage, and operational impacts associated with increased moorage
capacity [Condition. l].
Water Quali1y and Wetlands
75. The proposed drainfields (primary and reserve to serve the "sailing school
building "), would . be located outside the required wetland and well setbacks. A Building
Site Application for this on -site septic system must obtain approval from the Kitsap
County Health District before building permits would be issued. No. significant adverse
impacts have been shown to be likely. [Exhibits 70; 107;: Testimony Ostby; Bergan].
There is no evidence that circumstances here require other than the Health Districf s
SCMCUP13042 Reissued 11113/2006
Page 18 of 34
standard process, fee review of on-site septic system design [Condition 3] to provide
all necessary provision for avoidance and/or.mitigation of potential adverse impacts
76, The wetland is properly designated a Category III wetland. The. consultant
made mistakes in completing the requisite rating form [Exhibit. 32, Appendix E], but the
cumulative effect of the appropriate corrections made at hearing [Testimony Bergan;
Carr], results in. a total score (16), well short of that .(22+) needed for classification as
Category II. .(Even if the Appellant's view had prevailed regarding the "scrub -shrub
class" question, the resultant additional 3 points would not change the classification.)
77. The 50 -ft. wide wetland buffer is proper as proposed. The Critical Areas
Ordinance [BIMC 16.20.0901 provides adequate and appropriate protections [see
Conditions 4 and 8]..
Traffic and Parkin
7:8. The 47 parking. spaces [see Finding 40) proposed.would meet the "worst -
case=' parking demand. situation that. occurs. during large events. The parking areas
would miitigate or avoid the potential impact from on- street. parking along. Spargur
Loop Road.
79.. The City Engineer determined that a Certificate of Coneurrency . [BIMC
15.32] was not required for review of the subject: application. The function of the
concurrency review is to ensure that affected transportation facilities (generally,
intersections) have sufficient capacity (level of service) to serve the development seeking
permit(s). Projects. anticipated to .have fewer than 50 trips per day, are exempt from the.
certificate requirement. Here, based .upon annualized daily trip data indicating about 40
trips per day [Traffic Memo; Exhibit 3, Section S], the proposal was found to be exempt.
[Exhibit 43;.Testimony Hathaway; Bishop]
80. The traffic report prepared for submittal with the. application [Exhibit 3,.
Section 8] estimated travel demand based upon assumed ITE (Institute of Traffic
Engineers) trip generation rates. The ITE rate manual does not have a trip generation rate
for "sailing class '.., so the traffic consultant used an "assembly" category .(church) and the
size (sq. I) of the Springer house to estimate trips to be generated by the: sailing classes.
Estimating likely future trips often. must rely on less: than optimal predictive factors.
Here, however, information about intended classes and reasonable assumptions about.
driving: practices that were adduced. at hearing (i.e., 20 -24. students/class; one instructor;:
only summer weekdays, between 10 a.m.. and 4 p.m.; no overlap with other scheduled
events; carpooling at an average. of two studentslvehiele, etc:), provides more credible.
bases for estimating trips associated with the sailing class program. The likely number of
trips to and from the subject site generated by the sailing classes (and. not. adjusted for
students traveling by boat or other alternate mode), would be on the order of 42 -48 trips .
per day as indicated. by expert testimony at hearing. [Testimony Bishop;. Leadbetter;.
Llewellyn]
8.1. Vehicle trips dropping off and picking up sailing class students would be.
grouped around the start of class and the. end of class (anticipated to be around 1.0 a.m.
and 4 p.m. respectively). Impact would be mitigated by these arrival and departure times
SCUPICUP13042 Reissued 11/13/2006
Page: 19 of 34
not concurring within the normal AM and PM "Peak Hours" for weekday travel. But
comings and.goings grouped like this could haven adverse impact at places on Spargur
Loop Road where two- way`iravel. can be risky [see Finding 191.
82,. Having `the trips..associated with the sailing classes occur on Spargur
]coop Road between the Yacht Club. and Hidden Cove. Road, would reduce the.:
potential for two -way travel conflicts. Mitigation would be provided by: encouraging
arrival via bidden. Cove Road then north on Spargur Loop Road, and limiting
departures to southbound on Spargur Loop Road (toward Hidden Cove Road)
[Conditions 25 and 30]. Keeping the. trips where cars can pass by one another safely
would help mitigate for the new trips associated with the sailing: classes. An unpaved,
unobstructed area (an informal "shoulder") alongside the paved. travel :surface makes an
important contribution toward safe travel where pavement. width is narrow. Maintaining
an informal "shoulder" along the SYC frontage (which extends to within 210 ft. of the
Spargur Loop/Hidden Cave intersection [see attachment, Exhibit 55] }, would facilitate
safer two -way travel and help miitigate traffc impact [Condition 20].
83. By dictating a smaller class size (i.e., dock for 10 boats maximum = 20
students maximum), the number of trips and associated. traffic impact would be
mitigated..by reducing the:size of the small boat dock [.Conditions 1, 31, 34].
84. Large events can. add noticeably 'to traffic in the neighborhood. Ensuring
a serviceable "shoulder" on: the west. side of .Spargur Loop Road to provide. for safer
two -way travel [ Condition 20] and directing travel on Spargur Loop Road
southbound from the Club [Condition 251 would mitigate for some large. event traffic
impacts, as would. reducing the length of the extension to the main dock [Condition I]
acid prohibiting.events and sailing classes frown overlapping [Condition 31].
Parks and Public Access
85. In May 2006, after the issuance of the Director's 1ViDNS; the Bainbridge
Island Metropolitan Park and Recreation District, expressed concerns that SYC's
"proposal. to extend its dock" could have a: negative impact on the public's use of Spargur
Park and T'Chookway Park, The .major concerns were that. there would be increased boat
traffic that could.: cause congestion. and conflict between public and private use-. increase
noise levels unacceptably; reduce the "passive use elements expected from both .parks
obscure sight lines and view; and, obstruct local public access. to the waterfront. While
the Park District acknowledges potential benefits from "some public /private endeavors ".,
the District urged that the length of the dock be reduced. [Exhibit 841
86: At the SEPA hearing, Terry.Lande, representing the Park District, testified .
that the District has concerns regarding the potential that thelength of the proposed. small
boat dock could interfere with the public.'s use of the Spargur Park dock. The planning
for Spargur Park is not complete, but the District is intending that the dock would be used,
for launch and retrieval of small boats, kayaks; and canoes. If the public boaters have to
go around, or come too close to the SYC dock, conflicts could arise that could discourage
use of the public clock.
SCUP /CUP13042 Reissued 1.111312006
Page 20 of 34
87. At the length. proposed (I 10 ft.), the small boat dock would make the
pargur Park dock difficult to use as boaters traveling a direct. route out into the bay or
back, would come very close to the small boat dock and could have to do additional
maneuvering to . pass it. safely. The impact of making use of the public dock more
difficult could be effectively mitigated by requiring that the length.of small boat dock
be reduced to 90 ft. [Condition 11 so as to provide additional distance between the end
of that dock and the likely route between the public dock and the center of the bay.
88. The assertions as to adverse impacts to "visual access" have not been
substantiated. No change in the view from T'Chookwap was established and the view
from Spargur Park would he of boats on the water, docks, and boats moored at docks. No
adverse impact to "visual access" is established in this record,
M Requiring inclusion of non- members in the sailing classes would
increase the public's access to the water over existing conditions [Condition 3.11.
Aesthetics and Views
94. The "view corridor" created with the relocation of the play equipment
would be an improvement. The. garage would be an improvement over the existing
structures. The upland projects (garage, buffer,: moving play equipment) would all
contribute to the Club's residential appearance and neighborhood compatibility:
91, The 25 -f1:: wide .landscape buffer along the eastern property boundary
would. effectively screen views of the Club from the road. This buffer of native
vegetation and mature trees would present: an outward appearance very similar to that of
the.residential neighbors [Condition 191.
91. From. the water. the views would be of a. marina; not shown to. be an
adverse impact. The removal of the dilapidated. Springer dock. would be an aesthetic
improvement, as would. the renovation of the exterior of the Springer house (compare
photos of the existing appearance with artist's rendering of future: Exhibits 92; PP 29, 30,
and 98. 106]).
93. No adverse impacts with regard to aesthetics and /or. Views have been
established, no additional mitigation is warranted.
Noise
94. Noise from Club activities, particularly noise from the large events, is
noticeable and nearby neighbors and (as noise travels particularly Well over water) some
residents across the Bay, have been disturbed by this. noise.. The proposed. sail'
classes; required to be kept small and limited to weekdays, would not add to this
impact [Condition 3l]. New moorage facilities could result in more attendees at large
events and. aggravation of the noise impacts. The extension .of the main dock should be
reduced to mitigate for potential noise impact associated with large events. [Condition
1].
SEPA APPEAL
95. The. appellant sought to show that the Director's N1DNS was issued in
error and asserted that the proposal would probably result in significant unavoidable
SCUP /CUP13042 Reissued 11/13/2006
Page:21 of 34
adverse impacts relative to marine animals and habitat, water quality, wetlands, traffic,
parks, view and aesthetics, and noise.. Appellant's argument fails as the proposal would
either not have significant effect or the :imposition of conditions would provide
satisfactory mitigation.
96, Impacts to the marine environment from in- water construction would be
avoided. or mitigated by reducing the size of the proposed overwater structures,
seasonal construction limits, removal of creosote piles, and other requirements
[Conditions 1, 2, 6, 12, 13, 14; 15, 16, 22; and. 23]. The adverse immpacts due to shading
caused by over -water structures would be avoided by reducing the size of both the
proposed floats [see Finding: 74 and mitigated by inclusion of appropriate grating in
floats. and gangways [Condition..17] and the removal of creosote piles and other
debris [Conditions 12 and 13]. The combination of these mitigating. conditions is
necessary to reasonably ensure no net. loss and no significant adverse impact.
97. Measures required to minimize. erosion during construction, to manage
stormwater runoff, and ensure adequate on -site sewage disposal provide mitigation
for potential water quality impacts [Conditions 2, 4,. 3, 19; 21, 241. The on -site
wetland would be. protected by compliance with the provisions of the Critical Areas
Ordinance [see Condition $].
98. Potential traffic impacts due. to the operation of. the small boat sailing.
program wound be mitigated by limiting sailing class size. and timing., restricting use
of the meeting rooms, and facilitating safe two -way travel on Spargur Loop Road
[Conditions 1, 20, 25, and 31]. Additional mitigation (:e., further reduction. in. the
number of vehicle trips associated. with. sailing. class) could be achieved with discounting
class fees for carpooling or alternate modes of transportation (e.g, walking, bicycle,
boat) [Condition 301.
99, Potential interference with public access to /from the Spargur Park dock..
would be, avoided or. satisfactorily mitigated by reducing the length` of the small boat.
dock [Conditions, I and 33].
100. No adverse impacts with regard to aesthetics and/or views were
identified. The required 25-ft. wide native plant buffer would screen the site and present
a street -side appearance compatible with the residential neighborhood [Conditions 10 and
19]. No additional mitigation is warranted.
1.01: With mitigation provided by limiting class size, timing; and duration
[see Condition 31], the small .boat sailing program would not be expected to produce
significant noise impacts. Extension of the main dock should be reduced to mitigate
'increased noise associated with increasing moorage capacity [Condition 1],
PERMIT APPLICATIONS
Shoreline Conditional Use Permit SCUP
101 As required by BIMC 16:12.380.0.1 [see Finding 168], the application,
revised application materials, other documents in the record, and presentations at hearing,
including the information a.nd analysis provided by the Director [Exhibit 71; Testimony
SCUPICUP13042 Reissued 11/13/2006
Page 22 .of 34
of Machenj, demonstrate that the criteria for -granting a Shoreline Conditional Use Permit.
have been met:
a, The proposal,. as. conditioned,. is. consistent with the policies of the Shoreline
Management Act and with the City's Shoreline Master Program, including that:
water- dependent: recreational .opportunities and. access to the shoreline would . be.
increased and impacts to marine habitat and natural resources avoided,or mitigated.
b. There would. not be interference with the public use of the shoreline because
the site is privately owned and, as conditioned, the small boat dock would avoid the.
potential interference with use of the. public dock at Spargur Park.
c: Tlus area .has a mix of residential and recreational uses and Port Madison Bay has
many piers and docks. Boating and marina activities, including the proposal as
conditioned, are compatible with the permitted uses
d. As conditioned, adverse impacts ofthe proposal that would not be avoided would be
mitigated.
e. There would-be no substantial detriment to the. public interest. Shortening the length
of the small boat duck would avoid or satisfactorily. mitigate the potential for
interference with future public access to or from the Spargur Park dock. Aspects.of
the proposal that would benefit the public interest include: the 254. 'wide native
plant buffer along the,Spargur loop Road frontage, protection of the:on -site wetland;
removal of existing creosote piles, and use of nonW polluting materials in new
construction,. and, a net decrease in the surface area of overwater structures.
f. The proposal is: consistent with the 1t:2 zoning which allows "marinas'' as a
conditional use. Also,. the uses allowed in the Semi-Rural shoreline environment
include "boating facilities" as a conditional use and "water-oriented recreational
development" as a.pernnitted.use in the:5emi -Rural and Aquatic environments. See
Conditional Use. Permit' regarding consistency with the Comprehensive Plan.
Conditional Use`Permit (CUP)
103, The..Conditional Use Permit approval criteria of BTMC 18.1.09.040.A. [see
Finding 109] are met as follows [see also Staff Report, Exhibit. 7i]:
a. Is harmonious and a ro riate in desi n . character and .a earance. As
conditioned; the size and design of the new facilities would be compatible with
development in the 'vicinity: moving: the play equipment.wouid provide a view corridor
from the road; renovation of the Springer house. would eliminate its current rundown
appearance; retaining mature trees and adding a 25 -ft. wide buffer of native plants
(including trees), would be in keeping with roadside character of the neighborhood, as
does keeping the, .majority the. site. as a wooded open: space. With the proposal, as
conditioned, the appearance of the subject: property would be harmonious with the
neighborhood.
b. Will be served bv_adNuate public facilities. Potable. water is provided by
private wells and the requirements of the.Health District. [see Finding 75 and Condition
31 would. ensure the adequacy of on -site sewage disposal. The Fire Department
requirements [Condition 5] would be met and storm water drainage plans must. be
approved by the Public Works Department as meeting City standards [Condition 21].
SCUPlCUP13042 Reissued 11113/2006
Page 23 of 34
C. Wi1I not be materiail detrimental. As conditioned, construction and operation
of the proposal should not be "materially detrirnentar2 to uses or property in .the
immediate vicinity. Mitigation :measures would avoid :or reduce potential traffic
impacts and ensure attractive, compatible appearance of grounds and structures
[Conditions 1, 19, 20, 25;307 arid. 311.. Reducing the length of the dock replacing the
existing Springer dock [Condition 11 would ensure that there would not be detriment to
the public's use of the Spargur Park dock. [See also taa", "f and:"g"
d. Is in accord with the Cam rehensive Plan. As conditioned to avoid or.mitigate
impacts, the proposal would meet this criterion: Protecting the wetland, reducing
averwater construction and coverage; 'and the removal of creosote piles and other
debris, are examples of ways that the goals of the Environmental Element. would be
met. Preserving mature trees, providing the buffer, removing play equipment, limiting
sailing class size, restricting. signs and controlling exterior lights. are .in. accord with
Land Use Element. Water Resources Element goals would. be met by .meeting City
requirements for storinwater management and upgrading the on -site septic system.
e: Conn Iles will, all other revisions of this Code. The proposal, as..coaditioned,
complies with all - applicable provisions of this Code; including:. zoning standards
regarding lot area and coverage, setbacks, parking, and landscaping. LSee. also SEPA.
and SCUP analyses.]
f. Will not adversel affect the area`s residential nature: The Yacht Club has been
in this location for over 60 years and. it. has grown and changed (as has the
neighborhood). Most of each year,: the Club is relatively unobtrusive, not inappropriate
in appearance or activity for a residential area. The. appearance. of the site is .compatible
with the residential nature of the of the. area.. and the required landscape Buffer,
.regulation of exterior lighting, and limit on signs .[Conditions 11, 19; 291 would
maintain the residential .character of the neighborhood. As conditioned, the operation.
of the proposed small. boat smiling. classes (limited in size and :duration) would be
corripatible with this residential setting [Conditions 1 and 311, as is facilitating safe
two -way travel. on Spargur Loop Road Conditions 20 25,.30. [See also "a'.', "c" and
«f 1.
g. All nec sa measures have been taken. pperational impacts can that affect
the neighborhood are linked to size: more moorage means more attendees at large
events, which means potentially more noise and traffic conflicts with neighbors.
Reducing the length of the docks. [Condition 11 is a fundamental and necessary `measure
'as it reduces size - related impacts. Measures . like: controlling exterior lighting
[Condition 11], prohibiting camping in RWs. [Condition 261, limiting signs visible
outside the grounds [Condition 291, and facilitating safe two. -way travel on Spargur
Loop Road are also "necessary measures ". Condition 27 is an unusual, but. "necessary"
measure requiring SYC to take specific . steps to become more a part of the
neighborhood and better manage its.. "presence" in the neighborhood. This could not be
a SEPA condition, but conditional use .criteria are broader... Without this. requirement
for SYC to open up communications and improve relations with its neighbors, it could
not be found. that all.. necessary measures have. been taken. T.wo. specific actions are
required by Condition 27: to provide contact information for the neighbors to use when
they have complaints or concerns and to hold an annual neighborhood meeting to let
the ..neighbors know the SYC schedule for .large events:. and to heal' .the neighbors'
concerns (this could. be a mediation iflwhen. conditions warrant formal dispute
resolution). Further, to becoine a: part of the neighborhood, rather than apart .front it,
SCUPICUP13042 Reissued 11 /13. /20M
Page 24 of 34
Condition 27. encourages (not requires) SYC to invite its S.pargar1o.op Road neighbors
to potlatch, the Club's largest event.
BAINBRIDGE ISLAND. I1'11UMCIPAL CODE (BIMC)
SEPA Appeal
104. BIMC .16.04. 170 provides that any person may appeal the issuance of a
determination of nonsignif cance.
105. The City has adopted SEPA 'rules, Chapter 197 -11 WAC, to be used in
conjunction with the environmental policies and procedures found in $IMC 1.6,(14. WAC
provisions pertinent. to this decision include: WAC 197 -11 -05.5; WAC.197 -11 -330; WAC
197 -11 -797: "Threshold determination" WAC. 197 -11 -784: Troposal "; )VAC 197 -11-
734:. "Determination of nonsignificance" (DNS); WAC 197 -11 -782: "Probable"; WAC
107-11 -794_ "Sign icant ".. The policy .regarding cumulative.. impacts is defined at. BIMC
16.08,200:B.
Shoreline Conditional Use Permit 4SCUP)
106. The Shoreline Master Program, BIMC- Chapter .16.12, regulates
development in the shoreline,
.107, BIMC 16.12,380.C.1. "applies to all applications for shoreline
....conditional use permits" and provides, in-pertinent part, thai a SCUP maybe granted .if
the following are demonstrated:
a. The proposed use. would be.. consistent with the policies of RCW 9€1..58.020 or
its successor and the policies of, the master program.:
b. The proposed use would not interfere with the .normal public use of the
public shorelines.
C. The proposed use of the site and design of the project would be compatible
with other permitted uses within the area..
d The proposed use would cause no. unreasonably adverse effects to the
shoreline environment designation in which: it is. located..
e,. The public interest suffers no substantial detrimental effect..
f . The proposed use is consistent with the provisions of the zoning
ordinance.,. and the comprehensive plan
Conditional Use Permit CUP
108. The decision criteria for Conditional Use Permits, at BIMC .18..108:0401 .
instruct that:
A. A conditional.use may be approved or approved with modifications if
1. The. conditional use is. harmoiztous and appropriate in design, character and
appearance. with the existing or intended character and :quality of development in the
immediate vicinity :of the .subject property and with the physical. characteristics of the
subject property;
2. The conditional use will be :served by adequate public .facilities including
roans, water, fire protection, sewage disposal faciiities:and storm drainage facilities;
3. The conditional use will not be materially detrimental to uses or property in
the immediate vicinity of the subject: property;
SCUPICUP13042 Reissued 11/1312006
Page 25 of. 34
4. The conditional use is in accord with the comprehensive plan;
5. The conditional use complies with all other provisions of this code;
6 The: conditional use. will not .adversely affect the area or alter the area's
. predominantly residential nature; and
7, All necessary measures have been taken to eliminate the impacts that the
proposed use may have. on the surrounding area.
.13. A conditional use maybe approved with. conditions. if no reasonable conditions
can be imposed that ensure the application meets the decision criteria of this chapter,
then the application shall be. denied.
Permit and Appeal Procedures
109. Under the provisions Of BIMC 16,04.170, SEPA. appeals are to be heard
.by the Hearing Examiner who, after holding a public hearing; is to render decision on the
appeal , "giving substantial weight to the. decision.of the responsible okeial."
110. For Shoreline Conditional Use Permit (SCUP) decisions, BIMC 15;12.350.B. La
authorizes the Hearing Examiner to:
Approve, approve with conditions, or deny... shoreline conditional use permit
applications after a public hearing and after considering the findings and
recommendations of the director, which shall be given substantial weight....
111. BIMC 18,108.020.D provides that regular conditional use permits shall be
processed using the procedures of BIMC 2.15.100. The procedures of BIMC 2.16.100
require a decision by the. Hearing Examiner, after public hearing. In making such
decisions, the. Hearing Examiner 'shall .consider the applicable decision criteria of this.
code, al l other applicable.laws ... and any necessary documents and approvals" and may
"approve, approve with modifications, deny or remand" the. application.
.CO.NCLUSIONS
I. The Hearing. Examiner has jurisdiction to hear and decide the subject conditional
use permit questions and the SEPA appeal. In making the .SCUP decision and deciding
the . SEPA appeal, the Examiner is required to. give the Director substantial weight..
[BIMC 15.12.350.B..l.a and B1MC16.64.17o]
2. To overcome the substantial weight accorded the Director, it has to be shown .that
the Director was.clearly erroneous. Under this standard of review, the. Hearing. Examiner
rust be left with the de. finite and firm conviction that a mistake has been made.
3. Appropriate notices were given, the hearing was properly convened, and all
comments, testimony, and other admissible evidence considered.
4. The Yacht Club explains. its plans as a proposal. to; 1) rearrange the existing
moorage slips so that (more modern) large boats can be accommodated, 2) have a modest
small boat sailing program for. kids; and, 3). make several upgrades to the upland portion
of the property (garage for caretaker, increase landscaping along the road, etc,),.
However, except for the upgrades to the upland portion. of the property, what was
SCLTPICUP 13042 Reissued 11/13/2006
Page 26 of 34
originally proposed was, not illogically, perceived by some as a substantial expansion
with undesirable effects..
5. The application originally proposed much larger dock projects [main dock, see
Finding 26; small boat dock, see Finding 37]. The original Springer dock replacement
proposal (a float 130 ft.. long, 3.0 ft. wide; with four slips on the west side, each about 30
it. wide and 40 ft, long) seemed particularly overdone. Given that the maximum length
of a "small boat" is about 24 ft: [Testimony Otorowski], that original. size and
configuration looked like a.sizeabie. increase in moorage capacity rather than a dock for
use in a kids' small boat. sailing program. The inclusion of undefined. "meeting rooms"
and:references.to speakers and.general uses; got neighborhood critics-to speculating about.
banquets, ballrooms, and a myriad of added. act'ivit'ies attended by people . traveling to the
Club by car. For some, the proposal produced a vision of a "resort-type" facility with
more events, more people, more. traffic and. more noise, more of the time; not a. home
base for teaching kids how to sail, The current plans, afloat 110 #t. long by 20 ft. wide
With no slips, has clarified that no "resort" is:.intended. However; reducing: the.length. of
the dock another 20 feet is an important and necessary mitigation measure. A dock of
this size could. still be. appropriate for a sailing program and the smaller size would
accomplish .a net decrease (instead of an increase) in overwater coverage, decrease or
eliminate the potential for interfering with use of the public dock; and dictate a smaller
class size that, in turn, would help reduce traffic. impact.
6. The proposed "reconfiguration" .af: the main dock would not be. just moving
around its existing parts in order to have the slips wide enough for two large boats. The
dock would also be extended over 90 feet and would have substantially increased
moorage capacity for large boats. Although the number of slips would remain the same,
the number of large:boats that could be accommodated. would double (Le., today there are
12 slips that can.each hold one large boat; with the proposed dock extension, there would
still be 12 slips, but each could hold two large boats, for a total of 24). This increased
moorage capacity is what concerns the neighbors: they anticipate that such new capacity
would also mean increasingly larger, large events. Reducing the Iength of the proposed
extension by half would provide the SYC what it says it wants (i.e., slips wide enough for
two. large boats),. while. reducing (mitigating for) the potential impacts to the
neihborhood associated with increased moorage capacity.
7. SEPA mitigation measures (e.g., reducing the size: of the proposed docks,
restrictions on the use of the Springer house and the use of the replacement dock,
facilitating. safe two- travel on Spargur Loop Road, etc.) are necessary for compliance
with the conditional use permit conditions as well as for mitigation of environmental
impacts. However, conditional use approval here requires more than the SEPA
mitigation measures. While the pattern of use, with levels of activity unnoticeable two
thirds of the year [see: Finding. 9], is not likely to change due. to the proposal, the
intensification of use made possible by the proposed facilities. could not be permitted .
without requiring. SYC 'to take reasonable measures [Condition 271 to manage its
"presence in the neighborhood. With its policies; rules, elected officials arid.
Organizational structure, SYC has the means to successful implement these "necessary
SCUPICUP13042 Reissued 11/13/2006
Page. 27 of 34
measures" so that the operation of the Port. Madison Outstation fits as. well in the
neighborhood as does its physical appearance.
8. As conditioned, the proposal would have no significant adverse impacts, an
environmental impact statement is not required,. and no additional mitigation is
warranted. The Director's Mitigated Determination of Nonsignificance should be
affirmed..
9. As conditioned., the proposal would be consistent with the applicable provisions
of the Shoreline Master Program far .granting a. Shoreline Conditional Use Permit [see
BIMC 16.12.380.C.1] and the application should be approved.
10. As conditioned, the proposal would be consistent with the applicable provisions
ofBIMC 18.1.08.040 for granting a Conditional Use Permit and the application should be
approved.
DECISION.
SEPA F�PPEAL
The D'irector's Mitigated Determination of Non - significance (MDNS) regarding
application CUPISCUP1.3042. is AFFIRMED AS MODIFIED By.cmmTIONS by conditions.
.in Appendix. A.
CONDITIONAL USE PERMIT APPLICATION
The application of the Seattle Yacht Club for a (CLIP) and a Shoreline Conditional Use
Permit (SCUP) for a new boat ramp and other improvements within the shoreline. Semi-
rural environment is .hereby APPROVED As MODIFIED BY CONDITIONS in Appendix A.
SHORELINE CONDITIONAL USE PERMIT APPLICATION
The application of the Seattle Yacht Club for a Shoreline.Conditional Use. Permit (SCUP)
for a new boat. ramp and other improvements within the shoreline Semi -rural
environment is Hereby APPROVED AS MODIFIED BY CoNDmoNs in Appendix A..
Decision Reissued this 13th day of November:21006.
Si ned in (hi final
Meredith A. Getches
Hearing Exam..iner
Concerning Further Review
The decision of the Hearing Examiner is the City's final decision in this matter. Appeal is to
the Washington. State Shorelines Hearings Board as provided by :RCW 90:58.180 (or its
successor) and Chapter 4.6.1-08 WAC (or its successor). To be timely, petition for review
must be filed within the 21 -day appeal. period f see B1MC 16.12.3701,
SCUPICIJP13042 Reissued 11/13/2006
Page 28 of 34
Seattle Yacht Club
SCUP/CUP 13042
CONDITIONS OF APPROVAL
Construction pursuant to this permit shall notbegin and is not authorized until.21 days from the
date of filing with the Department of Ecology -as defined in RCW 90.58.144(6) and WAC.173-
27 -130, or until all review proceedings initiated within 21 days -from the.date of such. filing have
been terminated;.except as. provided in RCW, 90.58,140 (5)(a): and (li).
All Hydraulic Project Approval conditions and any Army Corp of EngineersTeritiit conditions
are also conditions of approval:for the SCUP, whether specifically included in the enumerated
conditions or not.
Conditions required..for SEPA mitigation are designated with an asterisk..(*); some SEPA
conditions are also required as conditional use permit conditions.
L The plans. and cross-section. drawings [Exhibit 113,. Proposed Moorage Reconfiguration: and
Pier /Gangway Renovation; Exhibit 57, Landscape Plaits] shall be revised as necessary to be
consistent with the conditions of this decision (including '`.`a" and ".b" that follow) and
submitted to the. City for approval. .Ali work shall. be completed in. accordance with the
approved revised plans and crass section drawings and the conditions of this decision,
a. Reduce the. length of the. westerly extension to the main dock from 91.5 ft, to. 46,5 ft.
The existing elements. of the main dock (piers, floats, etc:) may remain; be relocated,
reconfigured, replaced; or reused as .proposed [see Sheets 4 and 5 and associated cross
sections] or be . relocated, reconfigured, replaced, or reused in some different/revised
configuration; the dimensions of those elements are not to be increased and the length of
the westerly extension shall not exceed 46.5 ft.
b. Reduce the length of the small boat dock from 110 ft. to:90 ft.
I *Prior to: the .issuance of .building, clearing or grading permits, a Temporary Erosion and
Sedimentation Control Plan meeting the requirements in. BIMC 15.24 and 15:21 shall be
submitted for review and approved by. the City Engineer Ttie.approved..plan shall indicate the
location and type of erosion control measures and these measures shall be implemented
throughout Construction.
3. #Prior to :the issuance..of any building permits or the use .of the Springer house,.. approval
from the Kitsap County. Health District must. be obtained for an on -site septic system
design outside of the wetlands and wetland buffers. (The Iower portion of the structure may
be used for storage/maintenance prior tor the final septic approval, but no use of restrooms or
plumbing shall be permitted until an on -site septic system approved by the Health District is
completed.)
4. *.All construction and construction staging areas shall be outside critical areas and their
buffers. Construction fencing. or silt fencing shall be installed along.. critical area buffer
boundaries prior to any adjacent clearing,
5, A. City of Bainbridge Island building permit must be hpproved prior to construction
work on any of the docks or garage. The renovation of the Springer dock shall include a new
.standpipe as required by the Fire Department [see .Exhibit .201. Any work, in the Spargur
Loop Road. right-of-way must have an appropriate permit from the Public Works.. Department.
SCUPICUP13042 Reissued 111131200.6
Page 29 of 34
6. *WDFW Hydraulic Project Approval and Army Corps of Engineers Permit will .be
required prior to beginning any overwater work.on.this project. Copies of approvals must
also be .submitted to the City prior to beginning any work on the site. A copy of all public
agency approvals: and approved. drawings shall be :given to contractors performing work at the.
site prior to their beginning any construction work:
7. A boundary line adjustment placing all of the Seattle Yacht Club structures and facilities on
one lot shall be approved by the City and recorded prior to the issuance of any building.
pen ruts.
s. *The wetland buffers shall be separated from the access road by a rive -rail fence and
permanent . signs at :no less than 100400t intervals shall be. installed on the fence. The signs
shall identify the area as a wetland. and. wildlife habitat that should be protected. The fenoing
and signs shall be installed prior to clearing and grading. for the new .parking areas,
9. *A Bald Eagle Management : Plan may be. required. The applicant shall consult with
Shelly Ament, (360) 6814276, at WDFW, to detemune if a bald eagle inanagement plan is
necessaryprior to.commencement of any work.
10. Performance assurance device(s) .for all landscape plantings. required for this. conditional
use permit must: be. submitted and accepted by the City prior to the issuance .of.any
Building; grading or clearing permits or prior to any construction activities. Maintenance
assurance devices shall be submitted.. and accepted prior .to the release of the performance
assurance device and held.for three years following the completion of the planting..
11. *All exterior lights (overwater and upland) shall he hooded nr shielded so as not to emit
direct light or glare that is visible from adjacent properties, public rights -of- -way, or
Port Madison Bay.: All exterior lighting. must conform to the City. Regulations [B1MC
15.34] and parking lot lighting: shall be less than 20 feet high from grade. Lights on floats,
piers, and gangways shall be located to the extent possible. over solid, rather than grated,
sections and where this i& not possible the light shall be so sielded as to prevent light from
directly shining onto the water.
12. *The following mitigation. measures: shall: be completed prior to final hispection o£the docks:
a. Observe fish closures as required by WDFW to avoid impact. to juvenile salmon
iinigration 'and to protect herring spawning beds, no work allowed below the
ordinary high water line. between .January 15 and June 14, See .also Ht?A
conditions.
b: Remove and properly dispose of. 46 creosote - treated timber .piles,. tidal grid
located . adjacent to the.. easterly famed pier, grounded float. adjacent to . the
Springer building, and. ramp and. floats that constitute the current. Springer
dock,
13. *All construction and demolition debris shall be properly disposed of on land.in such a.
manner that it cannot enter into the waterway or cause adverse water quality impacts. All
creosote: piles must be cut into lengths of 10 feet or less and .disposed of at approved upland
site; the applicant shall provide documentation of proper upland disposal.
14, *Extreme care shall be taken to prevent petroleum products, chemicals, or other toxic or
deleterious materials ftom entering the water and degrading water quality.. If :a spill .
does occur, or.if oil sheen or any distressed or dying fslh.are observed in the project vicinity,
work shall cease immediately and the Washington Dcpartment.of Ecology shall be notified of
such conditions. Contact: Northwest Regional Spill Response Section at (206) 649 -7000.
SCUMUP13042 Reissued 11/13/2005
Page 30 of 34
15. * Steel piles shall be used for new and replacement. piles, except that: ACZA treated. pile.may
be used under the `Springer house if the piles are wrapped with an impermeable textile and.
high density plastic that will prevent the..leaching of arsenic and zinc into the waters of Part.
Madison Bay. ACZA piles must be sealed and wrapped .prior to placernent in water.
16.. *Floatation for the structures shall be fully enclosed and contained. to prevent the breakup
or loss.of.the floatation material into the water,
V. *All new floats wider than four feet shall contain..at least 50 °/o functional grating with
grating 601/6 open. All new gangways shall be fully grated.
19: *Contractor(s) is reyuii ed. to stop work and immediately notify the Department of Planning
and Community Development and the Washington State: Office of Archaeology and Historic
Preservation if any historical or archaeological artifacts are uncovered during excavation
or construction.
19. *1n accordance with. BIMC Chapter :18.85 and to the satisfaction. of the..Director, a 25 -ft.
wide "partial screen" landscape .buffer- .shall be established and. maintained on the
eastern 25--oft. of the subject property (i.e., west. of the SYC property boundary, as that
boundary is established or verified .pursuant to Condition 20). This buffer. shall be planted
vdth.nativie plants in accordance . with the. Landscape. Plan [Exhibit 57 revised, see below and
Condition 26]. The buffer area south of the southern driveway entrance that is not slated. for
landscaping shall be nutantained in its. existing condition (except that diseased or hazard trees.
and invasive plants may be removed as maintenance).
Revise the Landscape Plan to include the following:
.a. Paved OR graveled driveway "Approaches" to connect to and match the grade
of the existing roadway pavement of Spargur Loop Road .(i.e., to provide a
relatively smooth: "transition" surface between the western edge ofthe:Spargur Loop
Road pavement and the driveway entrances shown in Exhibit 57 and described in "b"
and "c" below);
b. A northern entrance (north of the. parking area containing parking spaces 1 through
26 - see in Exhibit 57) having a 15 -ft. Heide "approach" (see "a" above) AND, to
provide for access at. the northern end of that parking area, either a 154L wide
driveway OR a.10 -ft. wide driveway with 2-ft, wide "shoulders ".
G.: A. southern entrance (south of the parking area containing parking spaces 1 through
26 - see in Exhibit 57) having a 15 -ft. wide: "approach" (see "a" above) AND, to
provide for access at.the southern. end of that parking area, either a 15 -eft. wide.
driveway .aR a loft: wide driveway with 2-ft. wide "shoulders ". The. resrof the
southern driveway (and the parking areas) to be permitted consistent with Exhibit 57,
as determined appropriate by the Director.
A. *The applicant shall do the following to .help facilitate safe. two -way vehicular travel on
Spargur Loop Road adjacent to the frontage of the subject property:
a. Through a survey prepared by licensed land surveyor, SYC shall. prior to beginning
work on the 25 -ft. wide landscape Buffer [see Condition 19] and to the.:satisfkaion of
the City, identify and map the location of the following.along the north -south leg
of. Spargur Loop Road: (1) the eastern boundary of SYC's property, (2) the.
western. edge: of the existing roadway pavement; (3) any improvements or
structures (e.g., fences, utilities poles, etc.) between the western edge of the
existing pavement and the eastern property boundary of SI'C's property. Based
SCUPICUP13042 Reissued 11/13/2006
Page 31 of 34
upon this survey, SYC shall quitclaim .or provide:a right -of. -way dedication: along
the SYC frontage as necessary to establish and/or clarify, to the satisfaction of the
City, the easterly boundary of SYC's property, relative to the location and extent of a
30 -ft. wide public right-of-way for Spargur Loop Road.
b: Ensure that all existing or proposed SYC improvements (including, but not
limited to the. proposed 25 =ft, .landscape buffer; see Condition 1.9), are located on
SYC .property.. That. is, ail SYC improvements must be: west of SYC's easterly
property boundary and outside the Spargur Loop Road. public right -of I ay, as that
boundary and right -of way are established and/or clari#ied pursuant to "a" above.
c. To the satisfaction of the Director and in coordination with the Public Works.
Department (with a right-of-way permit if/as required), SYC shall clear existing
vegetation from the area west of the existing pavement of the north -south leg of
Spargur Loop Road in order to provide a informal roadway "shoulder" not less
than 3 -1t: wide in the public. right -of way contiguous to the.western edge of the
existing pavement.(see "a" above), This "shoulder" area shall be cleared. along the
entire SYC. frontage, from the:northe..ramost SYC driveway entrance (see Exhibit 56.
or 57), to the southern boundary of SYC's property. In addition, .as-approved by the
Public Works Department, SYC shall provide within the public. right -of -way; one
turnout (at least 6-ft.. wide) located west of the western %edge of the existing pavement.
and' approximately 300 ft, north of Hidden. Cove Road: Except for existing trees that
meet the BiMC :definition for "significane'. all vegetation shall` be cut down and cut
back and structures shall be, removed (except utility poles, .guide wires, and other
public facilities) from the "shoulder" and turnout areas. These areas shall be
leveled/graded and graveled. as necessary (except in wetland or other designated
critical areas) in order to provide a serviceable "shoulder" and turnout.
NOTE: Condition 20 does n4o require comprehensive "half street" :improvements matching
the City's design standards and% specifications for a street of this classification.
21. *The proposed. parking areas east and .southeast of the Caretaker's residence shall be
grasscrete. or other similar :permeable surface, If any .parking. area .is .paved,. then the
engineered stormwater management plan submitted with the application (or a. revised version
of it, acceptable to the Public Works Department), shall be. implemented. The driveway to
the renovated Springer house must be improved as required by the Fire Department to
aecommodate emergency fire apparatus.
22. *Prior to final inspection of the docks, the applicant: shall.post procedures for containment,
recovery; and mitigation. of spilled petroleum, sewage and toxic products.
23. *Failure to properly control the discharge of waste or hazardous materials may result in the
.revocation of the conditional% use permits). Prior to filial inspection of the docks, the
applicant shall post signs describing regulations on the subject property regarding the
following. (These signs are not to be. included in the total sign size limitation of Condition
24:)
o. Handling and 'disposal of waste, wastewater, toxic materials, and recycling;
Prohibiting.the. use of marine toilets. (i.e., no untreated. sewage discharge);
m Prohibiting the disposal of fish and shellfish cleaning wastes, and,
Best management practices (BMPs) .for boat maintenance and repairs on. site.
24.. Upon completion of construction,. all cleared areas within 200 .feet of the shoreline small.
be.landscaped within the first planting season.
SCUT' /CUP13042 . Reissued 11/13/2006
Page 32 of 34
25. 'The parking spaces shall be properly dimensioned and .striped. or .shall .provide wheel stops
to designate parking spaces. Signs. shall be. posted on SYC property at each driveway
instructing exiting drivers that only travel south on Spargur Loop Road is permitted
(e.g., "right turn only" leaving new parking areas): (These signs are not to be included in the
total sign. size limitation of Condition 29.) This direction shall be included in sailing class
brochures and. information sheets. and in SYC announcements regarding Port Madison
Outstation events.
26. SYC.'s Port Madison-specific rule prohibiting camping. on the. grounds [Rule 49; see Exhibit
1291 should be amended.to extend the ca .mping.prohibition to :RVs:
27. The SYC shall: 1) provide each household with .a .Spargur Loup Road address an
annually updated list (names and phpne numbers) of SYC contacts, including the Resident
Caretaker, present Commodore, and a representative of the. Port Madison. Corftraittee; 2)
through the Port Madison Committee .or other SYC :representative.. group or individual, host
an neighborhood meeting with Spargur Loop Road residents at the. Outstation each.. year
beforc.7une t" where SYC shall. advise neighbors.:of the dates of SYC- sponsored events: and
hear and. discuss neighborhood concerns about'.Outstation operations; and, 3) give serious
consideration to regularly inviting Spargur, Loop Road residents to some or all Potlatch
activities.
28. *The proposed development shall comply with the City's noise ordinance; specifically,
BIMC 16..16.020 regarding: maximum environmental noise levels and 16.16.025 regarding:
the limitations .on .construction hours and activities.
29. Outstation signs: that are visible from adjacent properties,. Spargur .Loop Road, or the bay,
shall be limited.to.a.curnulative total of 12 sq. ft. (Signs referred to in Conditions 22 and 24
are interior -oriented and.are not to be included in this cumulative total.)
36..Sailing class inforritation, registration,: and other materials provided to students or.prospective
students shall include directions showingldescribing approach. to the . site. only from
Hidden Cove Road and advising that departing .trips must go south on .Spargur Loop
Road to Hidden Cove Road. Students who carpool or use -alternate modes of transportation
bike, boat) shall receive a discount. on class. fees.
3 L The small boat sailing classes shall:
a. Be open to the public and; until the class orientation. meeting. or the first clay of class
(which ever comes. first), 5a °la .of class space.shall be reserved for non - members,
b. Have a maximum limit of 20 students: per class.
a. Not have class sessions that start before 9:30 a.m. or an.end after 4::00 p.m.
d. Be limited to one class per day.
e. Be held only between June 1 and September 1.
f . Be. held only on weekdays, but not on. any weekday that is part of a SYC large
event.
g. Store. Boats inside on weekends and between classes. The boats used. for class may be
left on the float overnight, centered on the solid portions (overlapping the grating as
little as possible), during consecutive' weekdays of class...
h. The Springer building snail not be used for sleeping accommodations; except by
class participants or instructors in connection with sailing class attendance or
activities.
SCUPICUP13042 Reissued 1111312006.
Page 33 of 34.
32, The small: boat dock. (modified Sprringet dock) shall be equipped with adequate lifesaving
equipment such as.'life rings, hooks and ropes. If used for motor boat moorage, it. shall .also
be equipped with containment booma.for petroleum and other toxic materials..
33. When sailing classes are..not in.s.ession, the small boat dock may be used for sailboats.that
are not longer that 24 ft. The small boat . dock may be used for moorage only when no
space, is available at the main dock; no rafting shall be permitted from. the north end of
the small boat dock.
. 34, Use of the meeting rooms in the renovated Springer :house must be.` ancillary to the small
sailboat sailing program (e.g., lessons. for sailing . classes., parents' meeting on first day of
class,. speakers/presentations regarding small boat sailing, 5YC committee planning sailing
classes,: etc.), or far meetings of regular SYC committees, No meetings shall be held in the
meeting rooms while any sailing class is in session or when arrival or departure times could
overlap, The Springer.building shall not be rented out, or be available to the general
public, or be used for private or non -SYC. activities or general meetings.
35. Failure to satisfactorily implement these conditions could result in revocation of the
conditional use.:permit(O.
SCUPICUP13042 Reissued 11/13/2006
Page. 34 of 34
LO CITY CLERK
17
66
X
W
DECISION OF THE HEARING EXAMINER
CITY OF BAlibCBRIB 3GE ISLAND
In the Matter of the Application of
MICHA EL 01 SON
for a Reasonable Use Exception
Introduction
RUE098UU.
The APPlicam seeks a Reasonable Use Exception to. allow construction of a waterline
across an intermittent stream. The Hearing Examiner: held a public heari :g on this matter
and made a site visit on .0ctober 14, 2004. Parties represented at the hearing Were the
Director, Planning and Commexnify Development Department (PCD or Department), by
Thomas A. Bonsell, Planner, and the Applicant; Michael. Olson, pro se. One metn�r of
the public made a comment.at the bearing in opposition to granting the exoeption. On
November 3, 2004 the Hearing Examiner ordered that the record be reopened so that the
parties.could submit needed information and documentation. The Hearing Examiner also
ordered that the hearing be. reconverted. on Decomber 2, 2004, for the receipt of that
information and documentation. The record was closed with the conclusion of the
reconvened hearing.
After' slue consideration of all the .evidence in the reoDyd, the following sbal€ constitute the
fWdings, conclusions, and decision of the Flearing Examiner on this application..
Irindipp
SLt§ Descriptio re
I. The subject property is located on the .south side of Lofgren Road; south .of
Murden Cove and is addressed as 9955 XE. Lofgren Road. [Application,. Exhibit 3, page
.l :Stafflteport, Exhibit 29, Page 1] The legal description (Exhibit S] is:
Lot 46 of the plat of Bolling Bay City, recorded Mi volume 3;..page 11 of
the plats, records of KitsatP County, and situate in Government lot 2,
Section 23, Township 23 north, Range 2 East; W. M., City of Bainbridge
Island, .Kitsap County, Washington.
2. The property is zoned R -Z, for residential use, two units per acre_ The
Comprehensive Plan designation is 0SR -2; Open Space Residential, two units per. acre.
(Exhibit 28,.page l; Exhibit 7)
SCUP12566 Pagel of to
I This is a.4.5. acre parcel that, under application SUB09800, the applicant seeks to
subdivide into six tots [the plat. is discussed in Exhibit 2, Hearing Examiner NMNS
Appeal Decision and Preliminary Plat Rcoammendation]. There is a single: family:
residence located. in the eastern portion ofthe site in proposed Lot 5 (a detached garage is.
located in proposed Lot 6). (]Exhibit 7; Sheet 3 j
4. The site is rectangular in shape and generally slopes to the north Site topography .
is dorninaUd a north - truing ravine contaig a seasonal $treaxn that, along with the
associated ravine slopes,. occupies the central third of the property. The western portion.
of the site is. undeveloped forested land. with moderate to. dense vegetative covet. A well,
intended to serve water to the proposed tots, has been developed near the west edge of the.
ravine on the north -south property line between Lots 2 and 3. [Exhibit 34]
5. The seasonal stream originates south. of the site, flows along the ravine. floor
within the slope- constrained channel, under. the Lofjp= roadway, and into a Category T.
wetland to the north (Exhibit .28, page 4; Testimony of Bonsellj. On the subject property
the ravine deepens to the north wW broadens slightly, with an elevation change from the
south property line: to the north property lime of approximately 40-54 -ft. At the north end
of the site the slopes flanking the ravine reach to a height of 50 ft. with angles of
approximately 40 degrees. At the south end of the property; the slope angles are mom
moderates and generally range from 20 to 30 degrees. (Exhibit. 34, pages 2-3] The ravine
slopes have mature red cedar and western. hemlock and a sparse herbaceous understory
[Exhibit 22, pages 31
d. The geotectmical cadsukants. who examined the site concluded in their report
[Exhibit 341 that the site has a.low .risk ofslope instability and landsliding [page 3]. They
further concluded that the site could be developed "without adverse impact to slope
stability provided that adequate earthwork drainagelerosion control, -and site vegetation
management are incorporated. into site.development and constructions prices" [page 4].
The limitations recommended include. a 25 -4t:. setback from the cyst of the ravine for
residences, and a 10-ft. minimum. setback for the well. [Exhibit 34, pages 4-5]
Bac around: MapAated SidWivision and SEPA A peal
7. On April 16, 2004, the Director issued a SEPA Mitigated Determination of
Significance (MDNS) in association with the underlying subdivision application: The
applicant appealed Conditions 6 and 7 of that IoMNS. Condition .6 baxxed installation the
waterline across the snvam and bufrer, anti: instead allowed the line. to be plaoed.in the
Lofgren Road right of way or mother well to be drilled. Condition 7 required that
Hemlock Street be improved.
g. After the appeal hearing, the Hearing Examiner issued: a SE]PA decision, as well
as a recommendation on the subdivision application. The decisions on the .SIEPA appeal
was to uphold : the Condition 6. probibitivn on the waterline crossing the stream and to
SCUP12566 Page 2 of 10
eliminate the Condition 7 requirement to improve Hemlock Street. The Hearing
Examiner's recommendation on the subdivision application was that the City Council
should remand it to PCD until the applicant could obtain Health District approval for the
water and sanitary waste disposal. systems [Exhibit. 2, pages 24251...
9, The NONS was withdrawn and reissued by PCD on August 14, 2004 [Exhibit 24.1
to amend the conditions in conformance with the Hearing Examiner's decision and to
expand it's application to include the Reasonable Use Exception (RUE) that is the subject
of this decision. The reissued MDNS was not appealed.
RUApplication
14. The proposal :consists of digging a trench and installing 670 liinear feet of
waterline: (from the well. to proposed Lot l and from the well .along the southern property
Iine to serve proposed Lots 4-_6). The hand -dug :drench for the waterline would be a
rnaxirnuAn of 4-ft. wide and would be located within a 25 ft. widc utility easement
[Exhibit 33; page 1; Exhibit 22; page 5]. The proposed north/south segments of the
waterline, along the. east and west sides of the ravine, would. be outside of the required 25
buffer; but.the east/west segment would be constructed across the Class IV stern and
buffer [see Exhibit 321,
11. As development cannot be allowed in a regulated stream: and buMr without. a
Reasonable Use Exception (RUE), the applicant applied for an RIDE to allow
construction of the . waterline with the.. proposed alignment (Exhibit 31. Notice of that
application was given cn April 17, 2004 [Exhibit 1811
12. Regarding the proposed waterline; the geotechnical .consultants recommended.
(see Finding.-961 that it should "...cross the ravine in the area of modest ravine slope
Height and angle....located in the extreme southern portion of the site.__" They
recmmended this route because they believed that the alignment "reduces slope soil and
vegetation disturbance and will not adversely impact ravine slope stability." [ Exhibit 34,
pages 4 -51 The preliminary plat reap, Exhibit 32, shows the proposed alignment.
13. The prod includes restorations of the scope and vegetation via implementation
of a proposed Mitigation Plan (see Findings 4'20 and 21).
14.. The.gootechnicel consultants (see Findings -46 and I2).recommend flud the tivach
be. backfalled "as. soon as passible" after tine. waterline has been installed and that the
disturbed soils b pmected throughout the. consiruetion process. The past- installation
measures recommended include mulching, seeding and/or hydroseeding all areas. where.
vegetation has been removed or the sor-ls dish 1. Standard erosion and sedimew
controls (e.g., hay bales, silt fencing, quarry span bermslblankets) should also be
employed during the trenching and waterline "installation. [Exhibit 34, page 51
SCUP12566 Page 3 of lit
_i: 4-L: ..rte:...... _A A 4z- 16.. W - 7- f1 *+ 4 .sac -Or{ nrvtt lsx c.a than+. rnittifto mp. JIMP.
.1 5. PCD expects that HDPE (high daisity.polyethylene) pipe will be required for the
waterline because it has little, if any, risk of leaking or failing [Testimony ofBonsell].
DiiWofs mmendation
16. On .April. % 2OD4, iPCD notified the applicant that the .application was complete
and gave public notice; ofapplicatian on April 17, 2004. [> Aibit I61..
IT One person submitted two written caanmerrts. [Exhibits. 20 and 25.] to the
Department in response to the Notice of Application [see Finding 926 for discussion of
comments].
i s. The wetland Advisory Committee (WA.C: or Committee) reviewed the RUE
application and dick a site inspection. Initially, in :May 2004, the Committee found that
the applirationn. did not satisfy the requireem nts of BIMC 16.2-0. ] 10 mod advised that a.
more thorough mitigation. plan be prepared. The Committee exprinsed specafic concems
wA suggestions in its report' regarding this application. Included in these specifies were:
1) that the mitigation plan should expressly include that the .trenching would be done by
hand and "undertaken. in the. stuvmer (dry mason) when no wam is flowing in the
s matrily>?ai'- and_ 2) :that the revianting, not ideally .done in the. dry season, should. be
was presumed to be "placed in the steep slope on the roadside" along Loofgren Road. and
not in.the paved portion ofthe rmdway.. [Exhibit 2, pages.7 -8, Finding :17]
29. The roadbed for Lofgren Road in this vicinity is fill.. The till is quite deep and the
embankments that flank the roadway are, in some places, both narrow and steep
(characterized as 42' %o; I'I slope), The sway fill has been amble MW it d6m Dot
appear likely that camstructing the waterline in the roadway would destabilize. it.
,. consovadw.in tie fill of the slepply sloping: embankment would disturb the
vegetative corner and possibly disrupt the stability of the .fill. [Testimony of Olson;
Testimony vfBonsel.l; Testimony of Mattson]
Ferua nt Coale Sections
X BIWC 1:6.20.090:I.2.b provides: that procedures for an thm a&njnigntive
Remonable Use Exception ate "11le pt ace�es set facer � BIIA%fE 2. Ib 100. •'
31. The. decision. procedures of B IMC 2.16. 100 provide as follows:
A_ Applicability .. This section Applies each time rr pro►*iaia of this code
Authorizes a public hearing . before tree hearing. examiner and a hal decision by
the hearing: examiner...
B. Purpose. Tire Purpose of the public hearing ts to review a proposed
project for consistency with the Bainbridge.Jsland icipvl Code, ap~ale
eiemer& of the comprehemive pl=rand all odwr apphearble Jdw, and to pnwide
en 0pparrtaLWJrr for Me public to cvmmsent on the project and its compliame with
the nrwdcip 1. code. the co-pr,-hen ive plan and all other applicable law.
a. The proposed activities will result in the minimum ininisioA
alteration or impwi ment of the wetlands, stream or required buffer including
impacts. to their functional: characteristics, while permitting some reasonable use
of the property_ In call %cases, &sturbance of a regulated w4tland .or stream shaft
only occur if no reasonable use can be achieved by :disturbance of the buffer
only;
c. the proposed. activitta T include mitigation as appropriate to
avoid measurable degradation to growubvater or surfaxce writer quaritty;.
d Phe proposed activities comply with all rrekwint state, haul and
federal laws including those related to sediment control, pollution..:
e, Alterations to... streams and buffers will be mitigated to the
extent feaasible considering; the .extent of the disturbawc the size of the site and
the necessity, for the. proposed activities;
f There will be no damage to nearby public or private property
and no threat to the health or safety of people on or off the propem.,
g. the inability to derive rseasonoble use.of the property is not the
result of actions by the .applicant in segregating or dividing the property and
creating the undeveiopable condition after . the effective date of this chapter;
h. ne reasonable use exception. will not allow a use or activity that
is inconsistent with the asses and activities and lrmitad nrs of other properties w
the vicinity and zone in which the property is loaaxted;
j. The reasonable use exception is the minimum necessary: to
provide reasonable. use of the property,.
k The .reasonable use exceptions is consistent with all. other
Provisions of this code and. Is in accord with the comprsehensive. plan..
35. The requires;ie t for mitigation plans for critical areas, at BRAC 16.20.110,
include that:
A. _.: A1l critical area restoration, creation arndlor enhancement projects
required:.pursuant to this:.. shall follow a mitigation plan prepared by an
expert approved by the director....
A ... The mitigation plan shall . recreate. Vic. nearly as PnWhle the original
critical area in terms -of Its acreage, function, geographic locaatiun . and
setting
C 2c. ... Specific critefia shall be provided for evaluating whether or not the
goals and objectives of the project are met and for beginning remedial action
or contingency measures...
e.... A program outlining. the appr{xtch for r>tnrritaring cortstraaction.. of the
compensation project and for assessing aY completed project shall be
Provide-d--
. f • -- A protocol shall be irtcltrded outlining: how the monitoring data. will be
evarluated A monitoring report shalt he submitted annimily-
SCUP 12S6b. Page: .7 of 10
g.... Contingency Plan. Identification of lential .courses of ac#ioA alai any
corrective measures. to be taken wirers monitoring or evaluation indicates
project pej�orwanee standards . are not being mel.
F. Permit Conditions.. Any cDmpensatron .project prepared pursuant to this
section acrd appro ved by the di rector.shall become. part of the application far
the permit.
Anal. .Ais
36; The single-family use proposed. by the associated subdivision that would be
supported by the requested waterline is consistent with the residential use anticipated by
the zoning and Comprehensive Plan designations of the subject l�perty•
37. There would have to be compliance with applicable Health
District regulations
regarding the provision of domestic. water service.
38. The alternative alignment in Lofgten Road would.be. substantially more expensive
than. the RUE alignment. Given.that the migat' conditions required for the RUE strewn
and buffer crossing would result in avoiding adverse impacts to the stream tmd."M*
vegetation. removed or disturbed by construction, the alternative alignment in Lofgren
RoW wood not how a noteworthy eww*wmental advantage. Constructing the waterline
in the steeply slcoing fill along the roadside could have destabilivrig effects on that fill
and associated adverse environmental consequences_
39. With pry implementation of the conditions recommended by the Director and
the Wetland Advisory Committee .(including the iVlaitigati n Plan and limiting. the time
and mariner of c ons on) the propoged vMahm.conshuction oudd be. a�
with minimal intrusion and no environmental damage to the stream and. doh
eqvironmew& Conshuctitm as lave no damage to neighboring
prropertiesor present a tbreat to the public health. and safety. There would be little; if any,
long -term risk to the stream Emm pipe leak or failure.
Conclusions
1.. The Hearing Examiner Us jurisdiction to hear and. decide this matter_
2:. Appropffiate Vices. of the application and the public hearing were given and the
hearing was properly convened and all comments,. testimony, and other evidence
considered.
3. Monetary Cost is one factor to be considered. in determining what is "reasonable"
and whether denying a requested exception is a. deprivation of reasonable use. It is not
the only consideration. Merely having. a greater cost std mr.deffive ad as
"unreasonable' and routinely trigger- the granting of a RUE. However, the magnitude of
SCUP 12566 Page 8 of 10
the difference in cost, when combiined with a large dollar amount„ could help distinguish
what is and. is riot reasonable, (For example: A high. cost alternative with a high
comparative cost difference - say,O,aUU for an alternative and $10,000 for the RUE
could be persuasive in finding that..a proposal is a remnable exception. Relatively low
casts,. even with a high comparative diffe=- Ve in this example, son�ritrg lilre.$2,O11'I1
versus $1,000, would riot_) C`�iyen that the goal. of the Critical Areas Ordinance here is the
pnxm inn of sbvams� consideration of the environmental "costs" (i.e., adverse impacts)
should always be foremost when contemplating exceptions to the protective prohibitions..
Where, as in the RUE requested h the a&em imp am woad be eft"y
minimized andlor. avoided :(thus Willing tine purpose of the su=n protections),
r
:.ae.akamwive dw im: subms ially higher dollar casts (in both absolute and
comparative term), would deprive the owner of reasonable use:
4.. As noted in Findings #ifs *rougb 39, and co stmt with tt Mectces
recommendation and that of'the Wetland.Advisory Committo, the requested ale
Use Exception should . be:granted as in its the requirements of BIMC 1.6.20.090.1.
Decision
Tle:q*diadion oMchael Olson for a Ramble Use Exception (associated with the b-
lot subdivision application SUB09800) to allow construction. of a waterline across. an
internrilterti strauri, is hereby ` AP.MonD. COMMMOM (Condidow 14 follow on
page 14),
ID
Entered. this " �. Fi day of December 2004.
l
"Meredith A Getches
City of Bainbridge Island
Hearing Examiner pro tem
NOTE: -ft is the respxisibility of a person seeking review: of a Bearing Examiner
decision to consult applicable Code. sections and other appropriate sources,
including State late; to determine 'h sftr dgW and rWlities .-FcL-dive. too
appeal-
ReqvAzt
fiw pd=W xmc% oir .#his &=s= by a person with standing can be m 0c by.. filing :a
land. use:petition in superior court within 21 days in accordance: with the Laird. Use Petition Act,.
Revised Code. of Washington (RCW)� "Ghaptcr3S.70C.
SCUP-12.3-66 Page 9 of 10
RUE 4"00
Conditions of Approval
IThm c mditiow are only Chow relawd to dw-RUE appiroval;. otleer amt additional
conditions included with approval ofsuMvimon SUB09800 must also be adhered to.]
SEPA. Caanditjm
L prior to any clearing or other construction.: activities, the applicant shall obtain a plat
utilities permit from the Deparbment of Plamsing and Community Development that includes an
apps ved`T rwy .F.pnson and'Sedimentation Cotes Plan addressing erosion and sediment
control issues specific to the vanstrudian MA illation. of .the wateiine -. That Plan must
specify the B.Mt Mmagwmt Practices (BA P) .to k employed. All the BN Ps specified shall be
impiemmttted.m the satisfaction of the Public Wailes Department.
2. All suitable =cavatc d soil shall. be rewsed on-ifte, provided tint neitber the location of
nor the manner of thae masse wcm1d daenage vegetation and/or contribute to or increase erosm or
. That Tnaftrial dcermiwd by the Dim mr to be unsuitablp for amine use shall.be
disposed of at a.disposal site approved by flip. Director.
3. Tv midgate aiir.:quaW impacts
conwactos shall conform :to Pug Sawd CIc2n Air
Agency reg ulab ons and take all reasonable. precautions to avoid.dust emissions- Vegetation that
amna on Plmt,. shall be removed. froa�ti the site,.
� tt� o�ite as ittdkated. in t1� Mirdipti .
pmcessed by chipper, or by some outer rnediod. of disposal not requiring burning.
4. All con tious and rccommendaboas set finih in Ac .. repRt PWand.bY
Meyers Biody namics, dated sober A. 1999 shall . be failowed without exception to the
sarisfitetiou of the Public Works Deparattent.
5. The trewitin g and instaliat=on activities for $0 ms's easdWest Shen be
permitted only in the "tiny season" where no water.is flowing.in the: staeambe& Trenching and
inmHahon actrMies .am the nook-south .s nts of the waterhne: outside of the stream and its
bufer may be pitted without this seasonal /mutation. Best tnanagerucnt practices to control
erosion and sedimenumion nuke be always uMized as appropriate ='see Condition. # 1.)
6. All confifiam of tba Mitiamtkm Plat (mPiaOting, .:resivratiml� moon toting, aan&gertcy
aced nisintenance, including Figures and Tables), prepared by Meyers Biociymmlics and dated. July
29, 2004, shall be followed widtaut exception to the satisfaction of tbe.Pubiic Weft Depaf mien#.
None -SEPA Cor aditions
7. Ile waterline, where it crosses ftee shuun, shall be constructed of heat welded MPE.(or
other matodat expressly fbend suitable by the Public V etks ) and/or shall.be slwved
to tine. satisfaciean of the Tublic Works Department.
SCUP 12566 Page : 10 of lU
BEFORE THE. HEARING .EXA1l M ER DEC 20 ARC
Cm GF 1BAtl BRIDGE ISLAND
in.the Matter of the Application of
AUCHAIELOLSON RUE09800
fora Reasonable Use Exception ORDER
CLAREFMC
DECISION
BIMC .16.20,100 provides that the ]Hearing F- xarmner . may clarify a decWon. The
Director, Planning and Community Development, has questioned. the inclusion, on l
1t3, ofthe. headings "SEPA. Conditions" and - Non- SEPA.Conditions ". As these headings
are unnecessary to the decision process and immaterial to the implementation of the
required eonditions,.they can and should be elimboated.
`It.:is: hereby ORDnum that .tie fearing Examiner's . decision issued .in this mattes' on
December 16, .2004 is CLARMFO by eliminating the headings on page ID and
substitufing the attached page 14 For the original.
Entered this 20th day of December 2004.
Meredith A. Getches
Heating Examiner pro tem
City OfBainbridge Island