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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