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HEX APPEAL DECISIONOctober 27. 2017 CITY OF BAINBRIDGE ISLAND, WASHINGTON HEARING EXAMINER DECISION ON ADMINISTRATIVE APPEALS Proceeding: Clark Administrative Appeals File number: PLN50467VEG Appellant: Paul and Jennifer Clark, represented by Dennis D. Reynolds, Attorney 200 Winslow Way West, Suite 380 Bainbridge Island, WA 98110 Location: Tax parcel no. 282502 -2- 035 -2008 FINDINGS OF FACT Procedural history 1. Attorney Dennis Reynolds, representing Paul and Jennifer Clark, appealed two related City decisions affecting tax parcel no. 282502 -2- 035 -2008, a 2.34 acre lot in the R -0.4 district zone where the Clarks plan to build a single - family residence. The first appeal challenged the City's revocation on October 6, 2016, of a vegetation management pen-nit (VMP) issued July 13, 2016. The second appeal challenged the Planning Director's December 12, 2016, decision embodying his denial of the Clarks' appeal of a warning of violation, order to correct and stop work order (collectively, the SWO) issued soon after revocation of the VMP. 2. Because both appeals arose out of a single complex of activities surrounding the Clarks' clearing of tax parcel no. 282502 -2- 035 -2008, with key issues substantially overlapping, the parties agreed that the two appeals should be consolidated into single hearing proceeding. A prehearing conference was held by the Hearing Examiner on March 15, 2017, at which time the appellants were represented by attorney Dennis Reynolds and the City by attorney James Haney. 3. The preheating order issued by the Hearing Examiner on March 20, 2017, identified the issues arising out of the administrative appeals as the following: ADMINISTRATIVE APPEAL DECISION — 1 A. Were VMP conditions violated warranting revocation of the July 13, 2016, permit? B. Was the VMP's clearing limit of 20,000 square feet of lot area exceeded? C. Does calculation of the VMP's 20,000 square feet limit include lot areas cleared earlier tinder a previously issued clearing permit? D. What areas of vegetation management on the Clarks' lot, if any, qualify under the City's regulatory scheme as having been "disturbed" rather than "cleared "? If such a regulatory distinction exists, what are its consequences for review of the Clark site? 4. The public hearing opened on April 26, 2017, at which time the Examiner suggested that the SWO appeal was not in fact subject to hearing examiner review jurisdiction. A conclusion that examiner appeal jurisdiction exists would need to be predicated on a generous reading of a vague and generic note appearing within the BIMC Table 2.16.010 -1 "Summary of Land Use Procedures ". While reliance on this note can be justified in the absence of a more specific provision, BIMC Chapter 1.26 in fact deals in considerable detail with the entire City code compliance process, including infraction notices, violation notices, stop work orders and penalties — none of which are subject to appeal to the Hearing Examiner. The parties accepted the Examiner's proposal that the SWO appeal should be dismissed from the instant proceeding, although the appellants' agreement appeared to be based more on considerations of moomess than an absence of jurisdiction. 5. At the end of appellant Paul Clark's direct testimony the Examiner engaged the parties in a discussion of settlement options, expressing the opinion that settlement appeared to offer to everyone the best available outcome. The parties agreed to renew settlement negotiations. But they preferred to complete the hearing process first in order to avoid having to return to finish a continued hearing if the settlement negotiations were to fail. On that basis, further hearing testimony and entry of exhibits went forward, and the evidentiary process was completed on April 26, 2017, at which time the record closed. The Examiner took the case under advisement pending receipt of notification from the parties regarding the results of the settlement negotiation process. 6. A status order issued May 2, 2017, dismissed the SWO appeal and memorialized the closing of the hearing record and its submission to the Examiner under advisement pending conclusion of the settlement negotiations between the City and the appellants. At the end of September the City notified the Examiner that settlement negotiations had failed and an appeal decision on the merits would be required. Site clearing issues raised by the appeal 7. Site preparation on the Clark property for residential construction began with the issuance of a clearing permit by the City for creation of a construction access driveway and a well site. This minor preparatory activity was deemed exempt from having to submit a VMP application under authority of BIMC 16.22.040.E because the proposal was limited to "[clutting and /or removal of less than 5,000 board feet of timber (including live, dead and down material) for personal use..." 8. The conditions appended to the clearing permit issued March 2, 2016, restricted timber removal to 5000 board feet and the "total area of disturbance" to 7000 square feet. The application was ADMINISTRATIVE APPEAL DECISION — 2 supported by a freehand site map, also submitted to the Kitsap Public Health District on February 26, 2016, that depicts in red a proposed construction driveway leading to a well site; the proposed development activity scaled in total area at about 3500 square feet. This work was performed roughly as proposed and accepted by the City, with some suggestion in the record that the actual area of clearing probably exceeded the 7000 square foot disturbance limit. More specifically, the record shows Mr. Clark guessing (and presumably believing) that the total area of clearing was about 11,000 square feet. 9. Clearing to accommodate the Clarks' full residential proposal required completion of a more elaborate process leading to issuance of a VMP under authority of BIMC 16.22.050, a procedure that includes SEPA review (BIMC 16.22.050.B(2)). The Clarks' March 2, 2016, VMP application represented the total proposed harvest area acreage to be 18,000 square feet, while the supporting environmental checklist identified the maximum amount of vegetation removal to be 15% "of lot size ", which translates to slightly more than 15,000 square feet; the City's reviewer amended that checklist response to 17 %. In addition, the appellants' initial VMP site plan represented the area to be cleared at 17,000 square feet but actually depicted a much larger area. The City thus required submission of a revised site plan on July 12, 2016, showing a reduced clearing area, a feat accomplished mainly by shrinking a proposed garden space to be located near the site's northwest corner. 10. On July 13, 2016, the City's Planning Director issued a "Notice of Administrative Decision and Mitigated Determination of Nonsignificance (MDNS)" to which was appended a Department staff report of the same date. The decision and MDNS approved the VMP application subject to six conditions, two of which are of particular importance to this review. Condition no. 2 states that "[t]his approval extends to the clearing of vegetation within the "Revised Garden Area," "Haul Route," and homesite area represented on the revised site plan submitted and date stamped July 12, 2016 (included as "Attachment B" of staff report). Condition no. 4 reads, "Total of clearing under this approval shall not exceed 20,000 square feet of area." 11. The VMP was revoked by the City on October 6, 2016, with a followup SWO issued shortly thereafter. While potential additional compliance problems were identified in the course of review, the primary basis for the revocation was a determination that the appellants had greatly exceeded the 20,000 clearing limit imposed by the permit. On October 25, 2016, the City had two of its employees, code compliance officer Greg Vause and survey program manager Robert Grant, perform a satellite - calibrated GPS survey of the clearing boundaries on the Clark property using the wellhead as a base reference. Mr. Grant is an experienced surveyor trained by its manufacturer in the use of the GPS equipment. As instructed by Mr. Vause, Mr. Grant only included areas of bare dirt within the perimeter of the survey. The survey calibrated as accurate, with less than a half -inch of calculated error. 12. The October 25, 2016, survey showed a total area of clearing on the Clark property of 33,278 square feet, with 8321 square feet of the total attributed to the initial clearing permit. These figures were not challenged by the appellants and are, indeed, the only indisputably reliable clearing figures in the record. A 2012 aerial photo upon which the GPS survey has been overlaid shows the entire cleared area to have been densely forested prior to disturbance. 13. Mr. Clark contended that the 20,000 square feet total of clearing contemplated by the July 13, 2016, VMP was understood by both himself and the City to be in addition to the 7000 square feet of disturbance previously authorized by the March 2, 2016, clearing permit, thus creating a total ADMINISTRATIVE APPEAL DECISION — 3 authorization for 27,000 square feet of site clearing. Other than a few isolated phrases that arguably might support multiple interpretations, the record as a whole supports a finding that the City consistently intended the 20,000 square foot limit to apply to the project as a whole and tried to communicate that understanding to Mr. Clark. 14. The principal element of potential vagueness inheres in the wording of MDNS condition no. 4, which identified the 20,000 square foot clearing limit as the "total of clearing under this approval." Read alone, and ignoring the regulatory structure of BIMC Chapter 16.22, this phrase can be interpreted as referring strictly to the July 13, 2016, VMP approval and excluding areas harvested under the prior clearing permit issued for the parcel. But the Clark permitting process as a whole made clear the City's intent to regulate and review all the related clearing on the parcel as a single project. 15. First, and most conspicuously, the companion requirement to MDNS condition no. 4 was condition no. 2, which defined the scope of authorized clearing in terms of areas specified in the July 12, 2016, revised site plan. Since this revised site plan both was required by the City to reduce proposed clearing to a level consistent with the stated 17,000 square foot target and included in this total the areas previously harvested under the clearing permit, it is hard to argue either that the City intended to create an approval for an additional 20,000 of clearing or that Mr. Clark could reasonably have believed such an interpretation. Condition no. 4 must be read in conjunction with condition no. 2, which operated to clarify its scope. 16. The 20,000 square foot limitation is based on the requirements of BIMC 16.22.060.A(1), which caps the total clearing permitted under VMP authority in the R -0.4 zoning district at 20% of the parcel's area. The minimum lot size for the R -0.4 zoning district is 100,000 square feet, and 20% of that base figure equals 20,000 square feet. In fact, the Clark parcel measures slightly larger than the district minimum size, having been estimated by Mr. Clark at 101,802.4 square feet and by Mr. Grant at 101,930 square feet. Using the larger figure, the 20% clearing limit calculates to a maximum of 20,386 square feet of possible clearing. The City's staff report used the 20,000 square foot and 20% limitations somewhat interchangeably. In three separate places it described 20% parcel clearing as a legal limit, underscoring its mandatory regulatory basis. 17. In view of the foregoing, it seems difficult to explain Mr. Clark's stubborn clinging to the notion that he should be able to add the earlier clearing permit harvest to the VMP authorization despite ample signals from City staff (as well as the code) that it was to be regarded as an included figure. The Examiner's theory is that Mr. Clark likely misread the implications of his initial clearing permit experience. In his own understanding he had applied for a 5000 board feet timber harvest, had been granted a 7000 square foot clearing envelope and had actually cleared about 11,000 square feet of vegetation. And he observed that the City had not expressed any concern over site disturbance activity rather plainly in excess of permit limitations. 18. Mr. Clark may thus have interpreted this apparent regulatory indifference as an invitation to continue ignoring the City's stated clearing limitations: submit the application, pay the fee, get the permit, and then cut whatever you want because the City doesn't really care. But a more sophisticated understanding might have led Mr. Clark down a different track: where a clearing permit is obviously just a first step toward obtaining a full VMP, the City has the option to overlook a degree of excessive cutting under the preliminary clearing permit because staff knows that it can fully account for such excess within the larger VMP review. That is what appears to have happened here. ADMINISTRATIVE APPEAL DECISION — 4 CONCLUSIONS 1. BIMC Chapter 16.22 undertakes to deal with the conversion of forest lands to non - timber uses consistent with the State Forest Practices Act. In doing so it employs a comprehensive vegetation management permit process to regulate all aspects of the conversion process. But BIMC 16.22.040 also recognizes certain exemptions from the Chapter's rather elaborate permitting requirements where the activity contemplated is either a minor stand -alone proposal or a limited first step in a larger proposal that will eventually require full VMP review. In the latter instance the exemption merely operates to defer comprehensive review until the parent proposal undergoes the VMP application process. In other words, the exemption is not from the operation and requirements of the Chapter but simply from the need to submit the full VMP application at the project's initial stage. Some activities listed as exempt under BIMC 16.22.040 may perhaps require no City permits at all, but many will require a clearing or grading permit based on exceeding a regulatory threshold lower than the one that triggers immediate VMP review. 2. That minor preliminary vegetation removal done pursuant to a clearing permit is not to be excluded from the later VMP review for the project as a whole is implicit in the requirements of BIMC 16.22.060.A(1) applicable to the Clark proposal: 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. A. Conversion Harvest Plan. The owner of any property which is being converted to a 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% 3. The critical point to be understood is that pursuant to the section's terms the relevant zoning district clearing area restriction percentage established by BIMC 16.22.060.A(1) applies to the conversion parcel itself, not to each individual permit issued for the parcel. 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 on 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. ADMINISTRATIVE APPEAL DECISION — 5 4. The record demonstrates that City staff well understood that for the Clark parcel the 20% clearing limitation was to be applied to the parcel as whole. Its VMP approval, as documented by the record, was issued consistent with that understanding and must be upheld. The legal upper limit for conversion clearing on the Clark property consistent with BIMC 16.22.060.A(1) standards is 20,386 square feet. Since the undisputed evidence is that the Clarks cleared 33,278 square feet of forest vegetation, exceeding the maximum legally permissible amount by a rather egregious 12,892 square feet, the City's revocation of the VMP was based on a plain violation of the permit's conditions and thus fully warranted under BIMC 16.22.097.A(2). 5. The appellants have also argued that there is a regulatory distinction to be made between site "clearing" and "disturbance ", and that some significant portion of their cited activity qualifies as unregulated disturbance. The essential idea seems to be that if a property owner buries vegetation under a layer of fill instead of cutting it down such action falls outside the ambit of the regulatory scheme. While this argument successfully draws attention to disparities within the regulatory terminology, it ultimately lacks merit. First, the words "disturb" or "disturbance" may have appeared in the text of the clearing permit, but they have been assigned no relevant regulatory role within BIMC Chapter 16.22. And while there are some discrepancies between the terminology used in BIMC Chapters 16.22 (Vegetation Management) and 16.18 (Land Clearing), the concepts and definitions are largely consistent with one another in their actual application and demonstrate an intent overall to form an integrated regulatory scheme. Both chapters employ the same baseline regulatory definition of "vegetation ". 6. Although the word "clearing" is occasionally used in BIMC Chapter 16.22, the Chapter does not undertake to define it. The principal terms employed by this Chapter to describe regulated alterations to vegetation are "harvesting" and "removal ". "Removal" is defined at BIMC 16.22.020.T as "the act of removing vegetation by digging up, cutting down or any act which is likely to cause vegetation to die within a period offive years including, but not limited to, damage inflicted to the root system by machinery, storage of materials, or soil compaction; changing the ground level in the area of the root system; damage inflicted on vegetation permitting infection or infestation; excessive pruning or any other action which is deemed harmful to vegetation." By way of comparison, BIMC 16.22.020 provides that " "Clearing" means the destruction or removal of vegetation by manual, mechanical, or chemical methods." 7. The two Chapters' definitions are different, but they overlap in practical scope. Both focus on vegetation removal of all kinds. But while BIMC 16.22.020 treats removal and destruction as separate equivalent actions, BIMC 16.22.020.T (somewhat awkwardly) countenances destruction as a fomr of removal. Thus removal under BIMC 16.22.020.T encompasses "any act which is likely to cause vegetation to die within a period of five years, including soil compaction; changing the ground level... or any other action which is deemed harmful to vegetation." In other words, BIMC 16.22.020.T undertakes to describe a range of destructive acts rather than simply using the generic term "destruction ". But either definition is broad enough to include within its ambit killing vegetation by burying it under fill, meaning that such action is similarly regulated by both BIMC 16.22.020.T and BIMC 16.22.020. For our purposes the two definitions operate identically. 8. In this respect, one potential source of confusion deserves to be noted. Page 9 of the appellants' pre - hearing brief contains a misleading paragraph. It reads as follows: ADMINISTRATIVE APPEAL DECISION — 6 There is a distinction between "cleared" and "disturbed." See, e.g., BIMC 16.18.020, Definitions. "Clearing" means the destruction and removal vegetation by mechanical or other means. "Disturbing" means moving dirt or effectuating a change in the soil cover and/or the existing soil topography. In this matter, what occurred on a substantial portion of the site is placing clean dirt from the basement excavation for the proposed home in varying depths over existing vegetation. It is expected that the vegetation will grow through or new vegetation take hold in the disturbed areas. That is "disturbance," not clearing. 9. Here is what seems most disturbing about the paragraph quoted above: a) The "clearing" definition is taken nearly verbatim from BIMC 16.18.020. The parallel treatment of "disturbing" immediately following suggests that it too was culled from a relevant BIMC definition. But it wasn't, not from BIMC 16.18.020 nor any other obvious place. The Examiner is not aware of any relevant and consequential regulatory use of "disturbing" in the BIMC. b) The brief fails to tell the reader where its definition of "disturbing" actually originated. Was it derived from a germane and credible source, or simply made up on the spot by the author? We don't know. C) The statement about the appellants "placing clean dirt" over vegetation was not supported in the hearing record by any relevant testimony. d) No evidence was offered in support of the assertion that the existing vegetation would "grow through" the fill covering it. And in the rainy northwest the observation that new vegetation will eventually "take hold in the disturbed areas" is simply a truism. But if native plants killed by fill cover are replaced by dandelions and curly dock, the resultant biological degradation may be deemed significant. This sort of degradation is part of what the VMP regulations are designed to prevent. 10. Finally, one of the basic rules of the land use permitting game is that the scope of an applicant's approval is limited to the development actually submitted for review. The Examiner is aware of no legal authority supporting the proposition that an applicant who has requested and received approval for Proposal A has a right to build a larger Proposal B simply because it is possible to read a permit condition expansively to justify a larger project. But that is precisely what Mr. Clark is seeking through this appeal. The proposal described in his environmental checklist entails 17,000 square feet of clearing, as does the proposal depicted on his revised site plan approved by the City. Mr. Clark now argues, however, that he is entitled to at least 27,000 square feet of clearing because it is possible to read VMP condition no. 4 — in complete isolation from his application, checklist, site plan and the other permit conditions — as creating a new and bigger development grant. This can only be regarded as a frivolous contention. 11. The appellants have failed to demonstrate that the Director's decision revoking the VMP issued to them on July 13, 2016, was unsupported by substantial evidence, was arbitrary and capricious or contrary to law. The Director's revocation decision is affirmed and the appeal denied. ADMINISTRATIVE APPEAL DECISION — 7 DECISION The Vegetation Management Permit revocatio i appeal of Paul and Jennifer Clark (file no. PLN50467VEG) is DENIED. ORDERED October 27, 2017. ord L. Smith, Hearing Examiner of Bainbridge Island The Hearing Examiner is authorized to make the City of Bainbridge Island's final decision on land use administrative appeals. A party with standing may seek judicial review of this decision by filing a timely suit in Kitsap County Superior Court under the Land Use Petition Act. The exhibit list prepared by the Clerk of the Hearing Examiner's Office is attached. ADMINISTRATIVE APPEAL DECISION — 8