CITY'S RESPONSE TO MOTION FOR RECONSIDERATION1
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BEFORE THE CITY OF BAINBRIDGE ISLAND
OFFICE OF THE HEARING EXAMINER
PAUL and JENNIFER CLARK
Appellants,
V.
CITY OF BAINBRIDGE ISLAND, acting
through its Department of Planning and
Community Development.
Respondent.
NO. PLN 50467 VEG
CITY'S RESPONSE TO MOTION FOR
RECONSIDERATION
I. INTRODUCTION
This matter comes before the Hearing Examiner on Paul and Jennifer Clark's Motion for
Reconsideration dated November 3, 2017. Under Rule 12.1 of the Bainbridge Island Hearing
Examiner Rules, reconsideration may be granted only upon a showing of one or more of the
following:
a. Irregularity in the proceedings 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 diligence, have been produced at the
hearing;
C. Clear mistake as to a material fact.
The Clarks have not asserted that there is any newly discovered evidence, so the Clarks must meet
the standards of Rule 12.1(a) or (c), neither of which is specifically addressed in the Clarks' motion.
{JEH1646645.DOC;1/13023.050013/ }
CITY'S RESPONSE TO MOTION FOR
RECONSIDERATION - 1
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206 -447 - 7000 /Fax: 206 - 447 -0215
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For the reasons set forth below, the Clarks have not met these standards and their motion must be
denied.
II. ARGUMENT IN RESPONSE TO MOTION
A. THERE WERE NO IRREGULARITIES IN THE PROCEEDINGS BEFORE THE
HEARING EXAMINER WHICH PREVENTED THE CLARKS FROM HAVING A
FAIR HEARING.
1. The Heari
Decision was Correct on
r Mistake as to an
It is important to note at the outset that the Hearing Examiner's decision was correct on the
merits and made no clear errors of material fact. While the Clarks now contend that the clearing
percentage limits set forth in BIMC 16.22.060.A do not apply to their property, the question before
the Examiner at the appeal hearing was not whether the Clarks' Vegetation Management Permit
( "VMP ") was correctly based on this code section, but rather whether the City properly revoked the
VMP for violation of its conditions by the Clarks. In this regard, the undisputed evidence showed
that (a) the VMP expressly limited clearing to "the `Revised Garden Area,' `Haul Route,' and
homesite area represented on the revised site plan submitted and date stamped July 12, 2016;" (b)
that the VMP expressly provided that the total clearing was "not to exceed 20,000 square feet of
area;" and (c) that the Clarks actually cleared 33,278 square feet, more than 13,000 square feet more
than their permit allowed. These are the material facts the Hearing Examiner relied on and none of
the issues raised by the Clarks in their motion for reconsideration counter these facts. The Hearing
Examiner correctly decided this matter based on the material facts and ruled that the VMP was
properly revoked for violation of its conditions.
2. The Hearing Examiner's Decision was Based on Applicable Code Provisions.
In their motion for reconsideration, the Clarks improperly raise a new issue that was never
raised in their Appeal of Administrative Decision Revoking Vegetation Management Permit or in
their Prehearing Brief. the Clarks now argue that the clearing percentages set forth in BIMC
16.22.060.A.1 are not applicable to their property. BIMC 2.16.020.P. l .f provides that "Appeal
hearings shall be limited to the issues specific in the written appeal." Because the Clarks did not raise
the application of 16.22.060.A.I in their appeal, the City objects to this argument being raised for the
{JEH1646645.DOC;1/13023.050013/ }
CITY'S RESPONSE TO MOTION FOR
RECONSIDERATION - 2
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206 - 447 - 7000 /Fax: 206 - 447 -0215
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first time on reconsideration and the Hearing Examiner should refuse to consider arguments it.
However, even if the Hearing Examiner decides to entertain this new argument, the argument is
without merit and the motion for reconsideration must be denied.
The Clarks misconstrue BIMC 16.22.060 when they argue that the Hearing Examiner relied
on inapplicable code provisions. Specifically, the Clarks' argument fails to recognize that BIMC
makes a distinction between the various classes of forest practice permits issued by the State of
Washington Department of Natural Resources and the way in which the City's clearing limits apply
to activities governed by each of those permit classes. When those distinctions are recognized, it is
apparent that the clearing limits set forth in BIMC 16.22.060.A apply to the Clarks' VMP and that
the Hearing Examiner was correct in his reliance on those limits.
BIMC 16.22.060 begins with a simple statement that is conveniently omitted from the code
sections quoted in the Clarks' Motion for Reconsideration: "Any property which is converting or
likely to convert to a nonforest use shall provide either a conversion harvest plan or a selective
harvest plan as follows." (Emphasis added). The remainder of BIMC 16.22.060 is then divided into
three subsections that detail how the plan requirements must be complied with. Subsection A applies
to activities requiring a Class IV forest practices permit and requires that an owner submit a
conversion harvest plan meeting the requirements of that subsection. Subsection B applies to Class I,
II, and III forest practice permits and requires that an owner submit a selective harvest plan meeting
the requirements of that subsection. Finally, Subsection C applies to Class I, II, and III forest practice
permits and requires that an owner submit a "DNR conversion option harvest plan" if the owner
wishes to avoid a six -year moratorium on developing the property post - hearing. The structure of
BIMC 16.22.060 thus indicates that the requirements that apply to any individual VMP that includes
tree removal are dependent upon (a) the class of forest practice permit that is necessary to be
obtained from DNR and (b) for Class I, II, and II forest practice permits, whether the owner wishes to
avoid a six -year development moratorium.
The clearing that was authorized under the Clark VMP required a Class IV forest practice
permit. Ex. I at p. 6. The Clarks were therefore required to comply with the conversion harvest plan
provisions of BIMC 16.22.060.A. BIMC 16.22.060A provides in pertinent part, that
{JEH1646645.DOC;1/13023.050013/ }
CITY'S RESPONSE TO MOTION FOR
RECONSIDERATION - 3
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206 - 447- 7000/Fax: 206 -447 -0215
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The owner of any property which is being converted to nonforest use
shall provide a conversion harvest plan which meets the standards
below.
1. Land clearing is permitted at the following percentages of the
area existing in order to prepare for future nonagricultural
development. Percentage of area that may be cut.
Zoning District Percent of area
R -0.4 20%
R -1 40%
R -2, 2.9, 3.5 and 4.3 60%
6. A Class IV general forest practice permit issued by DNR is
required.
(Emphasis added). The term "any property" in the first sentence of BIMC 16.22.060.A is
intentionally broad and means exactly what it says: any propert X on the City of Bainbridge Island that
is proposed to be converted or is likely to be converted to nonforest use as the result of clearing
under a Class IV forest practice permit must provide a conversion harvest plan and may only be
cleared in the percentages listed in the table. Because the Clarks applied to clear their property to
convert it from forest to single - family residential use, the plain language of BIMC 16.22.060.A.1
indicates that the clearing percentage limits in that subsection apply.
BIMC 16.22.030.13, cited by the Clarks, does not dictate a different result. That subsection
mirrors the provisions of BIMC 16.22.060.0 and is limited to the situation in which a property
owner who has applied for a Class I, II, or III forest practices permit desires to avoid a six -year
moratorium on development of the property:
A property owner intending to harvest under a Mass I (not exempt in
BIMC 1622.040.E), II, or III DNR forest practices permit may avoid
the six -year development moratorium if the property owner submits to
the city and DNR a conversion option harvest plan which meets the
standards of BIMC 16.22.060 and is approved by the city prior to the
application for a DNR forest practice permit.
{JEH1646645.DOC;1/13023.050013/ }
CITY'S RESPONSE TO MOTION FOR
RECONSIDERATION - 4
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206 - 447- 7000/Fax: 206 - 447 -0215
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W.
(Emphasis added). The DNR conversion option harvest plan provided for in this section is thus
"optional" or "voluntary" as provided in BIMC 16.22.020(E) because a property owner "may," but is
not required to, submit such a plan to DNR under BIMC 16.22.030.B and 16.22.060.0 in order to
avoid the six -year development moratorium. BIMC 16.22.030.B and BIMC 16.22.060.0 do not,
however, apply to applications for activities covered by Class IV forest practice permits, such as
those engaged in by the Clarks, where BIMC 16.22.060.A makes a conversion harvest plan a
requirement.
For the reasons set forth above, the Clarks' argument that the Hearing Examiner improperly
applied the 20% clearing limitation found in BIMC 16.22.060.A to their application is without merit.
The Examiner correctly applied the BIMC and the motion for reconsideration must be denied.
Claim.
THE CLARKS' EQUITABLE ESTOPPEL ARGUMENT IS WITHOUT MERIT.
1. The Hearing Examiner Lacks Jurisdiction to Consider an Equitable Estoppel
Hearing Examiners and other quasi - judicial administrative tribunals are creatures of the
legislative body that creates them, and their power is limited to that which the legislative body
grants. Lejeune v. Clallam County, 64 Wn. App. 257, 270 -71, 823 P.2d 1144 (1992); Chaussee v.
Snohomish County, 38 Wn. App. 630, 636, 689 P.2d 1084 (1984). In Bainbridge Island, the City
Council has given the Hearing Examiner authority to hear and decide appeals of land use decisions
under BIMC 2.16.020.P. BIMC 2.16.020.P. l .i.ii limits the Hearing Examiner's authority in an
appeal of a substantive non -SEPA decision to determining whether
(A) the proceedings were materially affected by failure to comply with
adopted procedures, or (B) the decision is inconsistent with the BIMC
criteria for that type of approval, or (C) the evidence in the record was
not adequate to support the decision.
Because the Hearing Examiner's authority in an appeal is limited to these decision criteria, the
Hearing Examiner has no jurisdiction to consider an equitable estoppel claim. Accord, Chaussee v.
Snohomish County, supra, 38 Wn. App. at 638 — 39 (Snohomish County Hearing Examiner and
Snohomish County Council had no jurisdiction to consider equitable estoppel claim in land use
appeal hearing under Snohomish County ordinances). The Clarks' equitable estoppel claim does not
{JEH1646645.DOC;1/13023.050013/ }
CITY'S RESPONSE TO MOTION FOR
RECONSIDERATION - 5
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206 - 447 - 7000 /Fax: 206 - 447 -0215
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form a basis for reconsideration by the Hearing Examiner in this case because the Hearing Examiner
lacked jurisdiction over that claim from the beginning.
2. Even if the
icable Here becam
with the Clearing Limits is
It is well - established that the doctrine of equitable estoppel is inapplicable where "the
representations relied upon are questions of law rather than fact." Concerned Land Owners of Union
Hill v. King County, 64 Wn. App. 768, 778, 827 P.2d 1017 (1992) (citing Chemical Bank v. WPPS,
102 Wn.2d 874, 905, 691 P.2d 524 (1984)). Statements as to whether a particular use of property
complies with a city's land use regulations are representations as to questions of law. City of Mercer
Island v. Steinmann, 9 Wn. App. 479, 483, 513 P.2d 80 (1973) (citing City of Mercer Island v.
Kaltenbach, 60 Wn.2d 105, 107, 371 P.2d 1009 (1962)). Thus, even if the Hearing Examiner has
jurisdiction to consider estoppel claims, the representations allegedly made here (which the City
disputes were made) were questions of law to which estoppel does not apply.
their
3. The Clarks
Even if the Hearing Examiner had jurisdiction over the claim of equitable estoppel, the
in
Clarks presented no legal authority to the Examiner in support of their claim prior to or at the
hearing. The sole mention of estoppel in the Appeal Statement comes in Section 5.7 on p. 7, in
which the Clarks assert, without any citation to legal authority, that the decision to revoke their
Vegetation Management Permit "is in error under the doctrines of substantial compliance, estoppel,
or permission, among others." The sole mention of estoppel in the Prehearing Brief of Appellants
Paul and Jennifer Clark occurs on p. 8, wherein the Clarks assert, again without any citation to legal
authority, that
An approval is an approval, which includes instructions issued by
Staff. In this regard, the Examiner has authority to decide questions of
permission, if not estoppel. If the Examiner decides he has jurisdiction
over the doctrine of estoppel, all elements are met in this instance.
Washington appellate courts routinely reject assignments of error that are unsupported by legal
authority or that are mentioned only in passing. See, e.g., Cowiche Canyon Conservancy v. Bosley,
{JEH1646645.DOC;1/13023.050013/ }
CITY'S RESPONSE TO MOTION FOR
RECONSIDERATION - 6
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206 - 447 - 7000 /Fax: 206 - 447 -0215
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118 Wn.2d 801, 809, 828 P.2d 549 (1992); Hamilton v. State Farm Ins. Co., 83 Wn.2d 787, 794 —
95, 523 P.2d 193 (1974); Olympic Stewardship Foundation v. State Environmental and Land Use
Hearings Office, 199 Wn. App. 668, 687, 399 P.3d 562 (2017); Holland v. City of Tacoma, 90 Wn.
App. 533, 538, 954 P.2d 290 (1998). Here, the Clarks cited no legal support for their equitable
estoppel claim and the Hearing Examiner was right not to consider it even if he had jurisdiction.
4. The Clarks Have Failed to Prove the Elements of E unable Estoppel.
Even if the Hearing Examiner has jurisdiction over equitable estoppel claims, the Clarks have
not proven any of the elements necessary for estoppel to be applied. Equitable estoppel against a
private party requires that three elements be proved: (1) that the party against whom estoppel is
claimed made an admission, statement or act that is inconsistent with its later claim; (2) that the
other party asserting estoppel relied on the first party's act, statement or admission; and (3) that
injury would result to the relying party from allowing the first party to contradict or repudiate the
prior act, statement or omission. Kamarevcky v. Dep't of Soc. and Health Servs., 122 Wn.2d 738,
743, 863 P.2d 535 (1993); Robinson v. Seattle, 119 Wn.2d 34, 82, 830 P.2d 318, cent. denied, 506
U.S. 1028, 113 S.Ct. 676, 121 L.Ed.2d 598 (1992). Equitable estoppel against the government is not
favored, however, and therefore two additional elements must be proved when government is the
target of the estoppel claim: (1) equitable estoppel must be necessary to avoid a manifest injustice;
and (2) the exercise of governmental functions must not be impaired as the result of the estoppel.
Kamarevcky, supra, 122 Wn.2d at 743, Shafer v. State, 83 Wn.2d 618, 622, 521 P.2d 736 (1974);
Finch v. Mathews, 74 Wn.2d 161, 175, 443 P.2d 833 (1968).
A party asserting equitable estoppel must prove each of the required elements by "clear,
cogent and convincing evidence." Kamarevcky, supra, 122 Wn.2d at 744; Pioneer Nat'l Title Ins.
Co. v. State, 39 Wn. App. 758, 760 -61, 695 P.2d 996 (1985). Where estoppel is sought against a
municipality acting in its governmental capacity, as when the government is administering land use
ordinances, the evidence presented must provide "unmistakable justification" for imposition of
estoppel. State v. Charlton, 71 Wn.2d 748, 430 P.2d 977 (1967); City of Mercer Island v.
Steinmann, supra, 9 Wn. App. at 482. To meet this burden of proof, a party asserting equitable
estoppel must convince the trier of fact that the alleged facts giving rise to the estoppel claim "highly
{JEH1646645.DOC;1/13023.050013/ }
CITY'S RESPONSE TO MOTION FOR
RECONSIDERATION - 7
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206-447-7000/Fax: 206-447-0215
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probable." Kamarevcky, supra, 122 Wn.2d at 744; Colonial Imports, Inc. v. Carlton Northwest, Inc.,
121 Wn.2d 726, 853 P.2d 913 (1993).
A review of the record demonstrates that the Clarks have failed to meet their burden of proof
on any of the elements of estoppel set forth above. First, the Clarks did not prove that Mr.
Schildmeyer approved the clearing limits after the VMP was issued. At the hearing, Mr. Clark
testified that after the original clearing permit was issued, Mr. Clark marked the trees to be removed
under that permit with pink duct tape. Mr. Clark said he understood that he was limited to removing
5000 board feet of timber under that permit and that his logging contractor advised him that 5000
board feet equated to about eight trees. Mr. Clark testified that he marked the eight trees to be
removed and that Mr. Schildmeyer approved removal of the trees that were marked, as well as the
vegetation around the trees. The City does not dispute that Mr. Schildmeyer inspected the Clark
property at the time of the original clearing permit and authorized the removal of eight trees.
The undersigned does not, however, recall Mr. Clark ever testifying during the hearing that
Mr. Schildmeyer made any inspections or approved any clearing or tree removal after issuance of the
vegetation management permit.' In fact, the undisputed testimony at the hearing was that Mr. Clark
never complied with Condition of Approval No. 6 of the VMP, which required the Clarks to install
clearing limits fencing around the areas shown on the July 12, 2016 site plan (Ex. 1, Attachment B)
and to have the same inspected and approved by the Planning and Community Development
Department before any vegetation removal. Moreover, the hearing testimony of Mr. Machen
indicated that Mr. Schildmeyer left the City's employ almost immediately after the VMP was
approved, making it highly unlikely that Mr. Schildmeyer inspected the clearing limits as the Clarks
claim. The Clarks thus failed to prove that the representation they claim Mr. Schildmeyer made
regarding their compliance with the clearing limits was "highly probable."
The Clarks also failed to establish a right to rely on Mr. Shildmeyer's alleged statements even
if they could prove he made them. The well - established rule in Washington is that equitable estoppel
will not be applied to a governmental agency where the act giving rise to the alleged reliance was
1 The undersigned is relying on his hearing notes, which may be imperfect but which do not reflect any such testimony.
The Clarks are relying on their Administrative Appeal, not every portion of which was testified to by the Clarks.
{JEH1646645.DOC;1/13023.050013/ }
CITY'S RESPONSE TO MOTION FOR
RECONSIDERATION - 8
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206 - 447- 7000/Fax: 206 - 447 -0215
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ultra vires or void. Board of Regents of Univ. of Wash. v. City of Seattle, 108 Wn.2d 545, 552, 741
P.2d 11 (1987); Adamson v. Port of Bellingham, 192 Wn. App. 921, 929, 374 P.3d 170 (2016); Choi
v. City of Fife, 60 Wn. App. 458, 464, 803 P.2d 1330 (1991); Arbogast v. Westport, 18 Wn. App. 4,
7, 567 P.2d 244 (1977). Municipal officers and employees have no authority to permit citizens to act
contrary to law, and any such alleged permission is an ultra vires act that cannot be relied on for
estoppel purposes. Bennett v. Grays Harbor County, 15 Wn.2d 331, 341, 130 P.2d 1041 (1942);
Choi v. City of Fife, supra, 60 Wn. App. at 464 — 65; City of Mercer Island v. Steinmann, supra, 9
Wn. App. at 482 — 83. The Hearing Examiner correctly recognized this principle in Conclusion No. 3
of his October 27, 2017 Decision on Administrative Appeals in this matter:
A property owner may not defeat the intent of the conversion
regulatory scheme by circumventing the clearing limitation set for the
parcel via a strategy of piecemealing City permits. Indeed, if City staff
itself were to undertake a conversion parcel approval of a series of
permits for total clearing in excess of BIMC 16.22.060.A(1) limits,
such exceedance likely would be found void on its face if challenged
as an ultra vires action.
Accord, City of Mercer Island v. Steinmann, supra, 9 Wn. App. at 483 (quoting V. F. Zahodiakin
Eng'r Corp. v. Zoning Bd. of Adjustment, 8 N. J. 386, 86 A.2d 127 (1952)):
The governmental zoning power may not be forfeited by the action of
local officers in disregard of the statute and the ordinance. The public
has an interest in zoning that cannot thus be set at naught. The
plaintiff landowner is presumed to have known of the invalidity of the
exception and to have acted at his peril.
Thus, even if the testimony had established the high probability that Mr. Schildmeyer approved the
area the Clarks ultimately cleared (which the City disputes that Mr. Schildmeyer did), such an
approval would have been ultra vires in that it would have been contrary to both BIMC
16.22.060.A.I and the express conditions of approval of the VMP, which limited clearing to "the
`Revised Garden Area,' `Haul Route,' and homesite area represented on the revised site plan
submitted and date stamped July 12, 2016," and which provided that the "total of clearing under this
approval shall not exceed 20,000 square feet of area." Ex. 2 at p. 2, Conditions 2 and 4. Because an
approval of clearing beyond 20,000 square feet would have been an ultra vires act, the Clarks could
not rely on such an alleged approval to prove estoppel.
{JEH1646645.DOC;1/13023.050013/ }
CITY'S RESPONSE TO MOTION FOR
RECONSIDERATION - 9
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206 - 447- 7000/Fax: 206 - 447 -0215
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Finally, the Clarks have also not proven any manifest injustice and have not shown that
application of estoppel would not impair the exercise of government functions. No manifest injustice
would be worked here by denying estoppel, because the Clarks will have only been held to the
clearing limits shown on the site plan the y submitted and to conditions of their permit that were
clear, unambiguous, and that they had full knowledge o£ And governmental functions would be
impaired if estoppel was applied, because the City's codes and the conditions of the Clarks' VMP
would be violated in contravention of the public interest supporting them.
C. THE HEARING EXAMINER'S REMARKS DO NOT SHOW PREJUDICE OR BIAS
AGAINST THE CLARKS.
Having failed to demonstrate any legal error justifying reconsideration, the Clarks resort at in
the end to arguing that the Hearing Examiner was prejudiced or biased against them. The Clarks see
this prejudice in the Examiner's characterization of Mr. Clark's adherence to a completely
unsupported argument regarding the cumulation of clearing limits in the original clearing permit and
the VMP as "stubborn," and in the Examiner's statement that it was possible that Mr. Clark possible
read the VMP conditions as "an invitation to continue ignoring the City's stated clearing limitations"
based on a perception of "regulatory indifference." But these statements by the Examiner do not
evidence prejudice or bias; they simply reflect the Examiner's evaluation of the credibility of Mr.
Clark's testimony and the strength of Mr. Clark's legal arguments. With respect to the
characterization of Mr. Clark as "stubbornly clinging" to his cumulation argument, the Hearing
Examiner's characterization was entirely accurate: while the Examiner posited that Mr. Clark's
reading was one osp sible reading of the VMP, the Examiner correctly held that in the context of the
code, the site plans submitted by the Clarks, and the history of the Clarks' violation of their original
clearing permit, this reading was not the correct reading of the VMP and not one which Mr. Clark
could credibly assert that he relied on. Mr. Clark's adherence to the cumulation argument was thus
properly characterized as "stubbornly clinging" to a theory that it was simply not believable. This
does not show prejudice on the Examiner's part, but merely that the Examiner did not believe Mr.
Clark when he said he thought the clearing limits in the two permits were cumulative.
{JEH1646645.DOC;1/13023.050013/ }
CITY'S RESPONSE TO MOTION FOR
RECONSIDERATION - 10
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206 - 447- 7000/Fax: 206 - 447 -0215
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The Hearing Examiner's remarks regarding the Clarks "ignoring the City's stated clearing
limits" based on a perception of "regulatory indifference" also did not show prejudice. The Examiner
was simply searching for some credible explanation — any credible explanation — for why the Clarks
so blatantly violated the conditions of the VMP. When no credible explanation was offered by the
Clarks, the Hearing Examiner was left to reach the only logical conclusion: that the Clarks may have
seen the opportunity to clear an area much larger than what the VMP allowed while making a claim
later that they thought the permit authorized that clearing.
An adverse ruling, without more, does not support an inference of bias. See, Rhinehart v. The
Seattle Times Co., 51 Wn. App. 561, 579 -80, 754 P.2d 1243 (1988). Here, the Hearing Examiner's
statements reflected his evaluation of the legal and factual arguments made by the Clarks and were
entirely accurate based on the record. No showing of actual bias or prejudice has been made.
III. CONCLUSION
For all of the reasons set forth above, the Clarks have failed to show that the Hearing
Examiner should reconsider his October 27, 2017 Decision on Administrative Appeals. The Clarks
have not proved any irregularity in the Hearing Examiner's proceedings on the appeal that prevented
them from obtaining a fair hearing. There is no evidence of bias on the part of the Hearing Examiner
against the Clarks and the Hearing Examiner properly applied the facts and law, including BIMC
16.22.060.A.1 in deciding the appeals. The Hearing Examiner has no jurisdiction over the equitable
estoppel claims raised by the Clarks, and even if he did, the doctrine of equitable estoppel does not
apply to representations regarding legal questions and the Clarks have failed to prove any of the
elements for estoppel to be applied. The Hearing Examiner made the correct decision on the appeals
in this matter and the motion for reconsideration must be denied.
DATED this 17ffi day of November, 2017.
{JEH1646645.DOC;1/13023.050013/ )
CITY'S RESPONSE TO MOTION FOR
RECONSIDERATION - 11
OGDEN t]RPPHY WAdACI
By:
James E. Haney, WSBA #1
Attorney for City of Bainb4
P.L.L.C.
Z
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206 - 447- 7000/Fax: 206 - 447 -0215
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DECLARATION OF SERVICE
I, Gloria Zak, am an employee of Ogden Murphy Wallace, PLLC, and certify that on the date
below, I provided the original of the City's Response to Motion for Reconsideration via email and
regular mail to Bainbridge Island Hearing Examiner and a copy to:
Attorney for Appellants:
Dennis D. Reynolds — dennis @ddrlaw.com
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island WA 98110
I declare under penalty of perjury under the laws of the State of Washington that the
foregoing is true and correct.
Executed at Seattle, Washington this 17th day of November, 2017.
Gloria J. Zak, LC94 s
{JEH1646645.DOC;1/13023.050013/ }
CITY'S RESPONSE TO MOTION FOR
RECONSIDERATION - 12
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206 - 447- 7000/Fax: 206 - 447 -0215