HEX ORDER DENYING RECONSIDERATIONNovember 29, 2017
CITY OF BAINBRIDGE ISLAND, WASHINGTON
HEARING EXAMINER
ORDER DENYING REQUEST FOR RECONSIDERATION
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
1.On November 3, 2017, Paul and Jennifer Clark, through their attorney Dennis D. Reynolds,
filed a request for reconsideration of the Hearing Examiner's October 27, 2017, decision denying their
appeal of the City's revocation of a Vegetation Management Permit (VMP). Attorney James Haney
filed a response on behalf of the City opposing reconsideration. No oral argument will be required to
reach a decision on the Clark request.
2.The Clarks' request contains three principal elements: an assertion that the Examiner in findings
nos. 17 and 18 impermissibly speculated on Mr. Clark's mindset in the context of why he might have
ignored the clearing limits stated in the VMP; a rehearsal of previously decided legal arguments
pertaining to proper interpretation of City codes governing the Clarks' clearing activity; and the
presentation of an equitable estoppel claim. As documented in the City's brief, the adjudication of an
equitable claim lies clearly beyond the ambit of hearing examiner jurisdictional authority. And naked
allegations within the Clarks' initial appeal statement filing do not qualify as “uncontested evidence”.
3.The Clarks' contention that a 20% clearing limit does not apply to their parcel specifically is
contradicted by the language of BIMC 16.22.060, which explicitly imposes such a limit on “[a]ny
property which is converting or likely to convert to a nonforest use.” On the other hand, resolving a
dispute over how code chapters dealing with vegetation management and clearing interact is a more
complicated exercise to the extent that variations in terminology do exist and the procedures of the two
chapters are only partially integrated.
4.The Examiner's reading of BIMC 16.22.030.E is that the stated exemption only applies to the
immediate need to obtain a VMP and does not excuse the resultant small scale cutting absolutely and
eternally from the need to comply with the terms of the Chapter. More specifically, when exempt small
scale cutting merely comprises the first phase of a plainly larger project regulated overall by BIMC
Chapter 16.22, implementation of the legislative intent mandates that clearing for the entire project be
aggregated into a cumulative total regardless of whether the smaller first phase by itself may have been
exempt from a requirement to obtain a separate Vegetation Management Permit. Any other reading
would create a major loophole allowing an applicant to circumvent the mandatory cumulative cutting
limits of BIMC 16.22.060 by conducting the clearing activity under a number of sequential minor
exemptions. These questions of code interpretation were explored and addressed in the Hearing
Examiner's October 27, 2017, decision.
5.Finally, in findings nos. 17 and 18 the Examiner did indeed engage in what can be fairly
characterized as superfluous speculation over exactly why Mr. Clark might have ignored all the red
flags being generated by his rather egregious behavior. In this context it should be noted that the
Examiner also went to considerable lengths to encourage the parties to reach a negotiated settlement, an
endeavor that apparently failed to prove productive.
6.How best to discourage inadequate property owner disclosure of conversion timber harvests has
long been a contentious policy issue in Washington, and the resultant adopted penalty framework can
be quite harsh in its effects. Given the underlying presence of a relatively minor single-lot residential
conversion proposal, it seemed reasonable to afford Mr. Clark an opportunity to negotiate a marginally
less onerous compliance burden than the maximum that could be imposed under BIMC Chapter 16.22.
But the foregoing explanation notwithstanding, the bottom line is that findings nos. 17 and 18 are for
the most part not essential to the appeal decision and can be omitted.
ORDER
The request by Paul and Jennifer Clark for reconsideration of the Hearing Examiner's October 27,
2017, decision upholding revocation of their Vegetation Management Permit is DENIED, except that
the following modifications to the appeal decision text are adopted:
A.Findings nos. 17 and 18 on page 4 are deleted.
B.Conclusion no. 3 on page 5 is modified to read as follows:
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. But where, as here, a clearing permit is
obviously just a first step toward obtaining a full VMP, the City has the practical option to defer
rectifying a degree of excessive cutting under the preliminary clearing permit because staff
knows that it can account for such excess within its later v ccccc comprehensive VMP review.
ORDERED November 29, 2017.
___________________________________
Stafford L. Smith, Hearing Examiner
City of Bainbridge Island