2017-11-13 APPELLANT'S RESPONSE IN OPPOSITION TO RESPONDENT'S MOTION TO DISMISS1
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I
BEFORE THE CITY OF BAINBRIDGE ISLAND
OFFICE OF HEARING EXAMINER
CRYSTAL and YURIE RICH,
Appellants,
v.
CITY OF BAINBRIDGE ISLAND, acting
through its Department of Planning and
Community Development,
Resuondent.
No. PLN50468 VEG
RESPONSE IN APPOSITION TO
RESPONDENT'S MOTION TO DISMISS
APPEAL OF ADMINISTRATIVE
DECISION, REQUEST TO SUMMARILY
DENY MOTION FOR CONTEMPT AND
PREHEARING BRIEF
I. INTRODUCTION
This matter is about a new decision. The City is right about "chaos" but for a reason
other than it states: It is acting to not honor prior approvals or ruling, such to prevent clearing
the non -farm buffer or mandating what is placed therein. The is a collateral attack on the
approved drainage plan, the prior rulings by the Examiner in this matter and the approved
Farm Plan,
The Riches submitted a drainage plan dated November 11, 2016 ( "Drainage Plan ")
that complied with Minimum Requirements 1 through 10 of the 2005 DOE Stormwater
Management Manual for Western Washington ( "Manual "), including Minimum Requirement
No. 7, as required by Bainbridge Island Municipal Code, and at the direction of the
Department Engineer. The Drainage Plan included clearing of the nonfarmed buffer and
RESPONSE IN OPPOSITION TO RESPONDENT'S
MOTION TO DISMISS APPEAL - 1 of 15
[903734 ]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
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Banbri ge Island, WA 98110
206 780 -6777
(206) 780 -6865 (Facsimile)
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drainage features located in the nonfarmed buffer. The City approved the Rich's Drainage
Plan provided by Seabold Engineering without request for alterations on November 21, 20165
f
in an email from Janelle Hitch by stating, "The permanent plan for stormwater management
from the cleared area appears to be sufficient." This was also referenced in the Vegetation
Management Permit Staff Report on page 4, item 42 in which it states "A drainage plan and
SWPPP report was approved by the City's Development Engineer" (emphasis in
original).1
After approving the Drainage Plan, the City imposed Project Condition 7 prohibiting
clearing of the nonfarmed buffer. The City also imposed Proi ect Condition 11 prohibiting
drainage features in the nonfarmed buffer. The Riches appealed Condition 7 and any other
parts of the City's decision that supported Condition 7. The Rich's appeal was granted as to
Condition 7, allowing them to clear the nonfarmed buffer. The only uses of the nonfarmed
buffer prohibited by the Examiner's decision were "agricultural activities or uses.. .that have
the potential for creating adverse offsite impacts, such as may result from livestock or poultry
pens, manure storage or applying toxic chemicals." Drainage features do not fall within the
prohibited uses and the Riches had no reason to appeal the Examiner's decision.
Condition 11 is a non -SEPA condition addressing "location" of drainage features. See
Crystal Rich Declaration dated November, 13, 2017 ( "Rich Decl. "), Ex. A. The City did not
include Condition 11 as a mitigation measure in its Staff Report dated December 20, 2016
(See Staff Report, Section II.E.4.). Nonetheless, after the deadline for appealing the
Examiner's decision, the City asserted that Condition 11 was all about "mitigation. "Along
1 The Staff Report is annexed as Appendix A -1 for the Examiner's convenience.
RESPONSE IN OPPOSITION TO RESPONDENT'S
MOTION TO DISMISS APPEAL - 2 of 15
[90373 -1
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 700 -6777
(206) 7PM865 (Facsimile)
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discussion between the Riches and the City ensued. The City requested that the Riches
"redline" the Drainage Plan to move drainage features out of the nonfarmed buffer. See Rich
Decl., Ex. B. The Riches explained that this would not work, but cooperated with the request,
by hiring a second Civil Engineer, Adam Wheeler, to revise the plat} according to the input
given by Christy Carr.
The City then rejected the "revised" drainage plan, and stated that it
did not meet code and did not satisfy Minimum Requirement 7 of the Manual because the
non -farm buffer was not treated. The City provided the Riches with alternatives that include:
(a) leavir
Drainage
native vegetation in the nonfarmed buffer; or (b) revising the previously- approved
Plan by increasing the size of the drainage features, moving the drainage features,
and accepting offsite mitigation. See Wheeler memo dated, October 16, 2017, Rich Decl., Ex.
C. This is not only a new decision, it is contrary to the City's prior approval of the Rich's
Drainage Plan,
The City's Motion to Dismiss goes on ad nauseam about how "their drainage plan"
does not meet Code or the Minimum Requirements of the Manual. To be clear, the City is not
referring to the "Drainage Plan" that the City approved. It is instead referring to the
"redlined" drainage plan that the City requested. Conspicuously missing from the City's
Motion to Dismiss is the fact that the City had already approved the "Drainage Plan."
The Riches will not be and are not required to be "sucked in" to an argument about
whether their "redlined" drainage features are adequately sized, designed, and located, which
subject is discussed ad nauseam in the City's Motion to Dismiss. The fact is, that the City
already approved the Rich's Drainage Plan and they are attempting to revise that approval
after the Rich's successful appeal of Condition 7.
RESPONSE IN OPPOSITION TO RESPONDENT'S
MOTION TO DISMISS APPEAL - 3 of 15
[90373 -1 ]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbri ge Island, WA 98110
(206) 7 0 -6777
(206) 780-6865 (Facsimile)
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W:
II. RELIEF REQUESTED
Appellants respectfully requests that the Hearing Examiner deny the City's motion to
dismiss their appeal for want of jurisdiction. The Hearing Examiner has broad authority
under the Bainbridge Island Municipal Code ( "BIMC ") to review the Director's
administrative land use decisions. Staff represents the Director. The refusal to honor the
City's prior approval of the Drainage Plan is an appealable land use decision, and the only
option the Riches have to "appeal" the City Staff s decision to prevent them from moving
forward with building their farm. The Riches have offered several times to arbitrate with the
City, and the City has declined that option.
III. ISSUES PRESENTED FOR REVIEW
Whether the Hearing Examiner has jurisdiction to review an appeal of the Department
of Planning decision to reverse its prior approval of the Drainage Plan? YES.
Whether the Hearing Examiner has jurisdiction to review and determine compliance
ID
with his prior orders? YES.
In the alternative, whether the Hearing Examiner should dismiss any unripe
substantive issues related to its land use decision without prejudice? YES.
IV. EVIDENCE RELIED UPON
The Declaration of Crystal Rich dated July 24, 2017, previously filed in this matter
and the Declaration of Crystal Rich, dated November 13, 2017 (with exhibits).
V.
FACTS
After issuance of the Examiner's Decision in this matter on March 9, 2017 (which the
City did not appeal) the Riches and the City have gone back - and -forth regarding the location
of the drainage features. This is addressed in Condition No. 11. Bainbridge Island wanted the
RESPONSE IN OPPOSITION TO RESPONDENT'S
MOTION TO DISMISS APPEAL - 4 of 15
[90373 -1 ]
DENNIS D. REYNOLDS LAW OFFICE
200 Wipslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780-6777
(206) 7$0-6865 (Facsimile)
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detention facility moved out of the non -farmed buffer even though the City Code allows
storm -water detention facilities in buffers (BIMC Section 18.12.040). Obviously, Condition
No. 11 was intended to implement Contested Condition No. 7 and, as such, was based purely
on "location" of the drainage features.
Not only was the stormwater infrastructure not mentioned as a mitigation measure on
the staff report, the SEPA report had a determination of non - significance. It was not until
after the* appeal period ended that the City Staff presented the approved Stormwater Report, as
having a mitigation issue. Concerns expressed included activities such as mowing, weeding
and pest management as a nuisance to neighbors. These are not unique farming activities, and
the maintenance of raingarden facilities are far less than traditional landscaping maintenance
of a residential property.
The requirement for a " nonfarmed buffer" was one of the primary issues in the
administrative hearing on the Rich's appeal, which was held on February 22, 20170
Condition No. 7 provides as follows:
"7. A 25 400t nonfarmed buffer must be provided along the
entire perimeter of the property. In accordance with the
Director's code interpretation (Attachment H), all trees and
existing vegetation shall be retained within areas designated as
a ` nonfarmed buffer' with the exception of the construction
entrance."
Proj ect
The City justified the imposition of Condition No. 7 based on the "Code Interpretation
of the Director of Planning and Community Development" dated July 7, 2016 ( "Director's
Interpretation "). In the words of the Hearing Examiner, the Director's Interpretation included
a "strained attempt to argue that the use of the world "left" in the sentence from BIMC
RESPONSE IN OPPOSITION TO RESPONDENT'S
MOTION TO DISMISS APPEAL - 5 of 15
[90373 -1 ]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 180m6777
(206) 780 -6865 (Facsimile)
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16.22.060.A.2. quoted above unequivocally mandates tree preservation in the nonfarmed
buffer." (HEX Decision paragraph 37). The Hearing Examiner also states:
"No public purpose is served by requiring a nonfarmed buffer to be
useless... The fundamental defect of the staff s regulatory approach
was that it indulged in interpretations of the Code that undervalued
the Riches' interests as property owners seeking to establish a
legislatively favored farm use. The result was a scheme of
regulatory interpretation that imposed excessive development
limitations unrelated in some instances both to stated code
standards and actual protective requirements, or else placed unduly
burdensome limitations on the appellants under circumstances
where less oppressive options were readily available." [and] "The
staff attempt to force the Riches' proposed nonfarmed buffer to
become a timber retention zone appears to be the case of an
otherwise laudable tree preservation goal seeking an inappropriate
outlet. BIMC Chapter 16.22 exists to regulate conversion of
timberlands to other uses consistent with the framework of the
state Forest Practices Act. Trying to transform it into a tree
preservation ordinance by means of various back door
interpretations was an ill - conceived exercise that finds no credible
support in chapter language and subverts its essential policy and
purpose." [Also] "The July 7, 2016, staff interpretation is not
persuasive. It reads more like an attempt to rationalize a politically
attractive outcome than an effort to provide a fair and objective
reading of the code - an impression confirmed by staff testimony at
the appeal hearing."
The Hearing Examiner turned to other portions of the BIMC to discern the general purpose of
"buffers," concluding as follows:
"As defined, buffers serve two purposes. One is to protect critical
areas. The other is "to reduce the impact of undesirable sights,
sounds, odors..." The Riche's nonfarmed buffer is nQt needed to
protect critical areas. Ergo, its function must be to reduce the
undesirable offsite impacts of farm operations. (HEX Decision,
paragraph 39, emphasis in original).
Section II.E. of the City's Staff Report dated December 20, 2016 ( "Staff Report "),
addresses which Proj ect Conditions the City considered necessary for stormwater
RESPONSE IN OPPOSITION TO RESPONDENT'S
MOTION TO DISMISS APPEAL - 6 of 15
[903 73 4
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
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management and mitigating farm impacts on adjacent residential uses. Citing BIMC
16.22.050.C, the City states that a vegetation management permit application may be
approved, denied, or approved with conditions if it meets certain conditions. Section II.E.2 of
the Staff Report provides as follows:
"2. Erosion control measures are included as part of the plan.
Since the cleared area will be greater than 1 acre in size, a
general NPDES construction permit from the Washington
State Department of Ecology (DOE) is required pri
any clearing or vegetation removal on the site. The
applicant applied for and received this permit. A drainage
Wan and SWPPP report was approved by the City's
Development Engineer." (emphasis in original).
or to
Section ILEA of the Staff Report provides as follows:
"4. Mitigation measures are proposed which reduce adverse
impacts on surrounding property. Mitigation measures are
required as conditions of approval to reduce adverse
impacts on adjacent properties (Conditions 1, 4, 5, 7, and
13)." (emphasis in original).
There are two notable observations to be drawn from the City' $ Staff Report with
respect to Proj ect Condition No. 11. First, Proj ect Condition No. 11 is not included in the list
of mitigation measures that the City lists as being required to reduce adverse impacts on
adjacent properties. Second, the City approved the Rich's drainage plan and SWPPP, which
included clearing of the nonfarmed buffer and drainage features (including bioretention cell
and grass lined swales) in the nonfarmed buffer. The above -cited Sections of the Staff Report
lead to one inescapable conclusion: Proj ect Condition No. 11 was based entirely on Proj ect
Condition No. 7 and the City's attempt to enforce a no -touch buffer in which all native
vegetation must remain. One of many proofs of this proposition is that the COBI issued a
RESPONSE IN OPPOSITION TO RESPONDENT'S
MOTION TO DISMISS APPEAL - 7 of 15
[903734 ]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbri fte Island, WA 98110
(206) 7 0-6777
(206) 780 -6865 (Facsimile)
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ROW permit, stating built out of the Farm Project is controlled by the approved Drainage
Plan. See Rich Decl., EX D.
After losing on Condition No. 7, the City took the position that Condition No. 11 was
a "mitigation measure;" however, that was not stated in the Staff Report. The most audacious
aspect of the City's new interpretation and enforcement of Condition No. 11 is the fact that
the City waited to announce its position until after the deadline for appealing the Examiner's
decision, a decision that ostensibly permitted drainage features in the nonfarmed buffer.
Thus, the Riches were never afforded an opportunity to appeal the condition as
interpreted and enforced by the City. In an effort to avoid further litigation, the Rich's
responded to the City's request to relocate the drainage features outside of the nonfarmed
buffer, and, on September 5, 2017, submitted the revised location to the City. Prior to doing
so, the City had agreed the original Drainage Plan could be initialed and signed by the Riches'
engineer, thus inducing the Riches to believe this would be a simple process. Yet, the City
rejected the revised plan that they requested and, to date, the City has not acted upon the
Rich's revised plan showing the new location.
Instead, the City of Bainbridge Island expresses a "concern" that the revised plans "do
not show the detention facility is large enough to contain the runoff from all areas that are
now being cleared, including the nonfarmed buffer areas." Since the City has required that no
stormwater facilities be placed in the nonfarmed buffer they have restricted the Richs' ability
to fully mitigate this area. The remainder of the property has been mitigated per the City's
Code. The City has placed the Riches in a Catch -22 where a revised stormwater plan cannot
mitigate the nonfarm buffer, but the nonfarm buffer must be mitigated in order to meet code
requirements. This demonstrates a new interpretati
RESPONSE IN OPPOSITION TO RESPONDENT'S
MOTION TO DISMISS APPEAL - 8 of 15
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on of Condition 11 and is a new decision.
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbn' ge Island, WA 98110
(206) 7 0-6777
(206) 780-6865 (Facsimile)
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It is indisputable that the original Drainage Plan is the best stormwater plan for the site, and
meets code requirements.
According to Adam Wheeler (Browne Wheeler Engineering, Inc., Bainbridge
Island), the City's Decision, presents the following options, all which violate prior
approvals or rulings.
Option 1
• Retain the 25 foot
Option 2
non farm buffer in the native forested condition.
• Vegetate the 25 foot non farm buffer with an assortment of fruit and nut trees
and shrubs. It should be noted that the south buffer cannot be collected and
routed to the rain garden.
• Increase the size of the rain garden to pro
for the change in runoff from the buffer.
Option 3
vide additional mitigation to account
• Vegetate the non farm buffer with grass. It should be noted that the south
buffer cannot be collected and routed to the rain garden.
• Construct a swale through the we
area and route it to the rain gardei
st pasture to collect more runoff from this
• Increase the size of the rain garden to provide additional mi
for the change in runoff from the buffer.
Option 4
tigation to account
• Vegetate the non farm buffer with grass. It should be noted that the south
buffer cannot be collected and routed to the rain garden,
• Remove the swale that routes offsite runoff around the rain garden.
• Increase the size of the rain garden to provide additional mitigation to account
for the change in runoff from the buffer.
Option 5
• Vegetate the non farm buffer with grass. It should be noted that the south
buffer cannot be collected and routed to the rain garden.
RESPONSE IN OPPOSITION TO RESPONDENT'S
MOTION TO DISMISS APPEAL - 9 of 15
[90373=11
DENNIs D. REYNOLDs LAW OFFICE
200 Wipslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780-6777
(206) 7$0 -6865 (Facsimile)
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• Construct a non infiltrating detention rain garden in the west pasture to provide
additional mitigation to account for the change in runoff from the buffer. The
rain garden would need a control structure and a perforated underdrain system
to control the runoff released from the rain garden.
Wheeler Memorandum, dated October 16, 2017(Rich Decl., Ex B)
The GOBI asserts that Condition 11 "is not impossible to comply with." Again, that
begs the question. The Code directive is to put the drainage system in the most advantageous
topographical location and prevent nuisances. A grass lined Swale is just a low area of grass
to catch run -off and direct it to appropriate infiltration if needed. The City' current position
kills the project under the guise of conditioning it. See Rich Decl., Ex. E (Wheeler Memo
dated 11 -13 -2017)
VI. ARGUMENT
The Examiner is required to take the facts of the appeal as true. A party moving for
CR 12(b)(6) dismissal must meet a high standard because a pleading only maybe dismissed if
it "appears beyond doubt that the [plaintiff] can prove no set of facts, consistent with the
complaint, which would entitle the [plaintiff) to relief." Bowman v. John Doe Two, 104
Wn.2d 181, 1839 704 P92d 140 (1985); Orwick v. Seattle, 103 Wn.2d 249, 2549 692 P.2d 793
(1984). CR 12(b)(6) motions should be grated "sparingly and with care." Orwick at 254.
Indeed, "CR 12(b) (6) motions, as the rule is now written and so far interpreted,
narrow in scope." Id. at 256 (emphasis added).
are very
For the purposes of such a motion, factual allegations of the challenged pleading are
accepted as true. Lawson v. State, 107 Wn.2d 444, 448, 730 P.2d (1986). If any state of facts
could exist under which the court could sustain the claim for relief, a 12(b)(6) motion must be
denied. Bowman, at 183; Orwick, at 255. Thus, a court may consider hypothetical facts not
RESPONSE IN OPPOSITION TO RESPONDENT'S
MOTION TO DISMISS APPEAL - 10 of 15
[90373=11
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbri ge Island, WA 98110
(206) 7 0-6777
(206) 7$0-6865 (Facsimile)
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part of the formal record in deciding whether to dismiss a complaint pursuant to CR 12(b)(6).
Halverson v. Dahl, 89 Wn.2d 673, 6755 574 P.2d 1190 (1978). Because of pretrial
procedures, including discovery and the summary judgment motion, the courts have ruled that
this standard of testing factual allegations is adequate. Orwick, at 255.
It should be noted that the federal courts, with an identical rule, have held that the
complaint need not correctly identify the legal theory or theories which give rise to the claim.
Rathborne v. Rathborne, 683 F.2d 914 (5th Cir. 1982); Dussouy v. Gulf Coast Inv. Corp., 660
F.2d 594, 604 (5th Cir.1981); Goldstein v. North Jersey Trust Co., 39 F.R.D. 363, 366
(S.D.N.Y.1966); 5 C. Wright & A. Miller, Federal Practice § 1357 (1969).
The facts which must be included as true include an assertion that a new land use
decision has been made:
The Decision regards Vegetation Management Permit PLN50468
VEG. It addresses a Revised Stormwater Drainage Plan and
Report requested by the City, submitted on September 5, 2017.
The original design approved by City Engineer Janelle Hitch
allows stormwater controls within the Non -Farm Buffer. The
decision is a new Decision wherein the City requires stormwater
treatment in Non -Farm Buffer areas even though Bainbridge Island
is prohibiting installation of any control system to collect and
channel stormwater in the buffer by (1) incorrectly holding on to,
interpreting, and/or applying "Condition 11" to the original
approval without authority and (2) by retroactively interpreting
Condition 11 as mitigation when it was not part of the Staff Report
for the VMP. The result is to leave Appellants with only one
practical feasible option, which is to not log within the "non -
farmed" buffer, a result contrary to the rulings of the Examiner is
this matter entered on March 9, 2017, which explicitly allows the
buffers to be logged, cleared, and managed.
(Appeal, pp. l -2, dated October 17, 2017)
RESPONSE IN OPPOSITION TO RESPONDENT'S
MOTION TO DISMISS APPEAL - 11 of 15
[90373 =1
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbr' ge Island, WA 98110
( }7
206 0 =6777
(206) 780 -6865 (Facsimile)
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's authority is broad and includes jurisdiction over the
A Hearing Examiner
Department's decision to ignore the approved drainage plan. Bainbridge Island Municipal
Code section 2.16.020 provides the "(j]urisdiction of the department director or the hearing
examiner is limited to those issues where ordinance or other appropriate authori
grants the
authority to issue a decision, recommendation, or issue an order." (Emphasis added). While
the language of this section of the code is framed in a negative (i.e., "limited "), the
jurisdictional authority for both the Director and Examiner is broad Q.e., "ordinance or other
appropriate authority" ).
More specifically, the BIMC gives the Director authority over any administrative land
use decision authorized by the code. See BIMC 2.14.030 C. 1. The term "decision" means a
"the act or process of deciding. "2 The word "final" means "
the end. "3. Here. the Citv has decided not to honor their own
something coming at or forming
approval of the Rich's Drainage
Plan. While it insists the only question is receipt of "new information," that information is
requested by the City as part of their demand for a new drainage plan. When the revised plan
City Staff with their own requested changes, the response was that it did
was presented to the C
not meet code for stormwater mitigation. The Riches have been put in a position where they
cannot adequately address stormwater concerns because the City will not allow them to
properly mitigate areas of their land.
A decision of the Director 41; mgy be a
ed to the hearinia examiner in accordance
with the procedures of BIMC 2.16.130[.]" See BIMC 2.16.095.H. The only decisions made
by the Director that cannot be appealed to the hearing examiner are "[a] dministrative
2 <hqs: / /www.merriamm webster .com /dictionary /decision
3 <h4s: / /www.merriamm webster.com/dictionary /final>
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[90373-1
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
t as
Bainbryage Island, WA 98110
(206) 780-6777
(206) 780-6865 (Facsimile)
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decisions by the public works director" and dec
latter decisions are not at issue here.
I
isions regarding "sign permits." See id. Such
It is unclear from the City's brief whether the City contends that the decision to insist
upon a new drainage plan is not (1) "final" (2) "land use" or (3) administrative "decision" of
the Director. Clearly it is "final." Clearly it falls under "land use" as it is made on a land use
application (VMP application) under the City's land use codes, Chapter 2.16, titled "Permit
Review and Appeal Procedures." And clearly it is a "decision" (or "order ") as the Director
decided to [not] honor the City's prior approval of the Rich's Drainage Plan. If the City's
argument were to be accepted, then this would leave the Riches (and other applicants) in an
administrative limbo where they cannot get a final decision, for purposes of review under the
Land Use Petition Act (RCW 36.70C et seq.), from either the Director or the Hearing
Examiner or the City Council. Applicants would be compelled to appeal every condition of
every approval simply to protect themselves against the City's refusal to honor prior
approvals and new decisions by the City after the appeal deadline.
The City cannot retroactively change the purpose of Condition 11 from location to
mitigation without making a new decision and the Rich's have the right to enforce the City's
prior approval of the Drainage Plan. If the City is allowed to enforce Condition 11, the Riches
are entitled to appeal because the City's enforcement: (a) reverses the City's prior approval of
the Drainage Plan; (b) imposes new requirements and burdens on the Riches that were not
imposed under the previously- approved Drainage Plan; and (c) changes the rationale of
Condition 11 from "location" to "mitigation." Notably, the most utilized buffer for drainage
features is the southern buffer, which borders a public road (i.e. casting even more doubt on
the need for mitigation where no adjacent residential use is presen
RESPONSE IN OPPOSITION TO RESPONDENT'S
DENNis D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
t).
MOTION TO DISMISS APPEAL - 13 of 15
[90373 -1]
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VII. REPLY IN SUPPORT OF APPELLANTS' MOTION FOR CONTEMPT
Mr. and Mrs. Rich withdraw their motion for contempt. The City's assertion it actions
are unreviewable and the Examiner has no authority to enforce his own orders will serve as a
basis (in part) for a claim of wrongful interference.
VIII. CONCLUSION
For the reasons set forth above, the City's Motion to Dismiss should be denied, and
Appellants' Appeal of Administrative Decision and Motion for Contempt should proceed to
hearing.
DATED this 13th day of November, 2017.
D S D. REYN DS L W OFFICE
By
Dennis D. Reynolds, WSBA #04762
Attorneys for Appellants Crystal and Yurie Rich
RESPONSE IN OPPOSITION TO RESPONDENT'S
MOTION TO DISMISS APPEAL - 14 of 15
[90373 -1]
DENNIs D. REYNOLDS LAW OFFICE
200 Wipslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -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 am 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:
City of Bainbridge Island Hearing Examiner
c/o Jennifer Smith, Hearing Examiner Clerk
City of Bainbridge Island
280 Madison Ave N
Bainbridge Island, WA 98110 -1812
jsmith @bainbridgewa.gov
Hearing Examiner Clerk
❑ Legal Messenger
❑ Hand Delivered
❑ Facsimile
❑ First Class Mail
❑ Express Mail, Next Day
Email
James E. Haney, WSBA #11058
❑
Legal Messenger
Meghan B. Frazer, WSBA #40768
❑
Hand Delivered
Ogden Murphy Wallace, PLLC
❑
Facsimile
901 Fifth Avenue, #3500
❑
First Class Mail
Seattle, WA 98164 -2008
❑ Express Mail, Next Day
zrEmail
(206) 447 -7000, tel / (206) 447 -0215, fax
jhaney @omw.law.com; mfrazer @omwlaw.com;
gzak @omwlaw.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 Class Mail
(206) 780 -8622, tel
❑
Express Mail, Next Day
jlevan@bainbridgewa.gov
Email
City of Bainbridge Island Staff Attorney
DATED at Bainbridge Island, Washington, this _L�_ day of November, 2017.
11w i5
Jon grenner
Paralegal
RESPONSE IN OPPOSITION TO RESPONDENT'S
MOTION TO DISMISS APPEAL - 15 of 15
[90373 -1]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
Rich — Response
DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT
STAFF REPORT
Date: December 20, 2016
To: Gary R. Christensen, AICP
From: Christy Carr, AICP
Project: Rich Vegetation Management
File Number: PLN50468
Applicant: Crystal and Yurie Rich
PO Box 11604
Bainbridge Island, Washington 98110
Request: Vegetation Management Permit for clearing over 5,000 board feet on a 6.98 -
acre parcel to allow for future residential and agricultural use.
Location: 8236 Sands Avenue
Parcel number 222502 -3- 013 -2008
Project Overview
A vegetation management permit is required for removal of over 5,000 board feet of timber. The
applicant is proposing to clear the majority of the 6.98 -acre lot to allow for future residential and
agricultural use. The applicant submitted a vegetation management permit application on June 21, 2016
(Attachment A).
Environmental Review
This project is subject to review under the State Environmental Policy Act (SEPA), as stipulated in the
Washington Administrative Code (WAC 197 -11 -800) and the Bainbridge Island Municipal Code (BIMC
16.22.050.B.2). The applicant submitted a SEPA checklist (Attachment B). Using the optional DNS
process provided in WAC 197 -11 -355, the City issued a combined Notice of Application /SEPA comment
period on July 1, 2016. The 14 -day comment period expired on July 15, 2016. Several neighbors
requested information about the application and one public comment was received, signed by 10
residents of NE Quail Hill Road (Attachment Q. The comment expressed concern about the existing road
conditions, ingress and egress, road drainage, access from Sands Road and overall feasibility of use of NE
Quail Hill Road for a haul route. In conjunction with the Notice of Decision for this application, the City
(acting as lead agency) will issue a threshold determination for this proposal.
(Rich PLN50468) Page 1 of 7
Figure 1. Project Site and Vicinity
Figure 2. Surrounding Zoning
c
—' NE Now Brooklyn Rd
Walden Ln
O
m
s
U
R-0.4 Z
a�
Q u ail H i:l 17 Rd
N
C f
i
Qa r� r
R -21
NE High School Rd o
(Rich PLN50468) Page 2 of 7
STAFF ANALYSIS
I. Findings of Fact - Site Characteristics
Tax Assessor Information
Tax Lot Number
Owners of Record
Lot Size
Land Use
Terrain
Soils
Existing Site Develo
Access
Public Services and Utilities
Zoning/Comprehensive Plan
F,
222502 -3- 013 -2008
Crystal and Yurie Rich
6.98 acre
Single -f m i
Gentle slop
Kapowsin
None
Sands Roa
None
R -0.4
residential
e down east to west
ravelly sandy loam
it Hill Road
Surrounding Zoning /Comprehensive 1144 (See Figure 2)
Plan Designation
Surrounding Uses Single - family residential
11, Bainbridge Island Municipal Code
An analysis of the proposal's consistency with applicable sections of the Bainbridge Island Municipal
Code (BIMC) is provided below.
A. Title 16.22.030.1 Applicability: Vegetation management standards apply to "Undeveloped
properties or developed properties which can be further subdivided, including those properties
under two acres in size which are exempt under a Class I forest practice permit". As an undeveloped
property, vegetation management standards are applicable.
B. Title 16.22,040 Exemptions: This proposal does not meet any of the provisions listed as exemptions.
C. Title 16.22.050.A Vegetation Management Permit: Since it is the applicants' intention to convert
this property to a nonforest use and to avoid a six�year moratorium on development, it is required
that they submit, and receive approval of, a vegetation management permit application. They are
also required to receive approval from the Washington State Department of Natural Resources
(DNR). Copies of any approvals issued to the applicant by DNR shall be provided to the City once
approved.
D. Title 16.22.050.6 Application Procedure: The applicant submitted application materials pursuant to
BIMC 16.22.070, including a SEPA checklist. A Notice of Incomplete Application was sent to the
applicant on July S. 2016 because the application materials were deficient. The applicant submitted
additional information on July 11, 2016 (Attachment D ). The applicant was provided the
Development Engineer's review comments (Attachment E; September 7, 2016) noting that a
Construction Stormwater General Permit from the Washington State Department of Ecology and
Construction Stormwater Pollution Prevention Plan (SWPPP) are required. The applicant submitted
a Drainage Plan (Attachment F; completed by Seabold Engineering LLC, November 11, 2016).
(Rich PLN50468) Page 3 of 7
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AP
q.
N
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E. Title 1612450.0 Decision Criteria: A vegetation management permit application may be approved,
denied, or approved with conditions If it meets the following criteria:
1. Harvesting meets the vegetation management standards of BIMC 16.21060. See
Section F, below.
2. Erosion control measures are included as
part of the plan. Since the cleared area
will be greater than 1 acre In size, a general NPDES construction permit from the
Washington State Department of Ecology (DOE) is required prior to any clearing or
vegetation removal on the site. The applicant applied for and received this permit,
A drainage plan and SWPPP report was approved by the City's Development
Engineer.
3. All applicable open space and corridor standards are met. There are no designated
open space areas on the lot, and the site is not part of a designated upland or
riparian corridor according to City data sources.
4. Mitigation measures are proposed which reduce adverse impacts on surrounding
property. Mitigation measures are required as conditions of approval to reduce
adverse impacts on adjacent properties (Condition 1, 4, 5, 7 and 13).
5. All other provisions of this code are met. This proposal meets this requirement,
F. 16.22.060 Vegetation management standards: 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. If the property is being converted to agriculture or pasture use, the property owner shall
submit a farm plan approved by the Kitsap Conservation District, or the USDA Natural
Resource Conservation Service (NRCS) or which is developed by the owner or a consultant
using USDA standards for water quality protection. If the land has not been used for
agriculture or pasture within the last five years, then a nonfarmed buffer of 25 feet shall be
left between the edge of the property and adjoining nonagricultural parcels. As a condition
of the vegetation management permit, the approved farm plan shall be implemented within
one year after the completion of the conversion harvest. The applicant submitted a farm
plan completed by the Kitsap Conservation District (Attachment 6) and Is required to
maintain a 25 -foot nonfarmed buffer at the edge of the property and adjoining
nonagricultural parcels (Attachment He Condition 7). The farm plan shall be Implemented
within one year after the completion of the conversion harvest (Condition 12).
2. Residual forest areas shall be in windfirm condition, clustered to the extent feasible and
contiguous to other existing stands. Buffering of adjacent, developed properties shall be
given high priority. The 2546ot nonfarmed buffer constitutes "residual forest areas" and
must be retained in a "windfirm condition" (BIMC 169228060.A.3). It is important that
these residual forest areas not become hazardous to the new' farm and residence, or to
the surrounding, neighboring properties as a result of the clearing and lumber- harvesting
that is planned. This being the case, a protection and retention plan prepared by a
qualified professional consulting arborist certified by the International Society of
Arborculture (ISA) will be required as a condition of approval for this project. If the
prepared plan requires that a distance greater than 25 -feet is necessary ensure that the
"windfirm" requirement Is met in the nonfarm buffer areas, or if additional planting is
required, the necessary modifications can be allowed under this approval. However, the
25 -16ot buffer requirement shall not be reduced as a result of the arborlsfs
recommendations (Condition 13).
(;Rich PLN50468)
•4 11%
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Page 4 of 7
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3. Unless otherwise allowed thorough an approved open space management plan, no cutting
is allowed within any of the following areas:
a. Critical areas or required buffers, as defined In Chapter 15.20 BIMC;
b. Previously established noncut buffer areas;
c.reenways, scenic road corridors, view corridors or wildlife corridors designated by the
comprehensive plan of Bainbridge Island or Bainbridge Municipal Code.
None of these areas is present on the site.
4. Any required perimeter landscape buffer that will be required upon development of the site
In accordance with BIMC 18.15.010. A perimeter landscape buffer is not required for
single-family residential development or accessory agricultural use. Future site
development may require landscaping in accordance with BIMC 18.15.010.
S. A Class IV general forest practice permit issued by DNR is required. As conditioned, the
applicant will submit an approved Class Iv general forest practice permit prior to
commencing any clearing activities on the site (Condition 2).
III. Conclusion and Recommendation
As conditioned, this proposal meets the applicable sections of the Bainbridge Island Municipal Code
(BIMC), and meets the decision criteria for approval found in 16.22.050.C.1 -5.
This application is approved subject to the following conditions:
SEPA Conditions:
1. A general NPDES construction permit from the Washington State Department of Ecology (DOE)
must be obtained by the applicant prior to any clearing, vegetation removal, or vegetation
disturbance on the property. A copy of this approval shall be provided shall be provided to the
Department of Planning and Community Development (PCD) prior to commencing any clearing
activity.
2. The applicant shall provide PCD a copy of a Class IV forest practices permit issued by the
Washington State Department of Natural Resources (DNR) prior to commencing any clearing
activities on the site.
39 Clearing limits fencing/netting must be installed, inspected, and approved by the PCD prior to
any vegetation disturbance on the site, in order to verify compliance with the conditions of
approval and conformity with the standards of BIMC 1612. At the time of the clearing limits
Inspection, the applicant shall have all property boundary lines of the lot clearly marked and
Identifiable.
4. Any dust generated during clearing activities or haul route construction shall be.controlled by
wetting the dust sources in areas of exposed soils and washing truck wheels before trucks leave
the site. Mud and dirt shall not be tracked onto public rights•of -way.
S. All best management practices (BMPs) provided in the Drainage Plan (completed by Seabold
Engineering LLC; November 11, 2016) are conditions of approval and must be implemented.
6. All inspections required by the City's Development Engineer are conditions of approval and must
be completed.
Project Conditions.
.WA 1
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Rich PLN50468j
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Page S of 7
7. A 25400t nonfarmed buffer must be provided along the entire perimeter of the property. In
accordance with the Director's code interpretation (Attachment H), all trees and existing
vegetation shall be retained within areas designated as a " nonfarmed buffer" with the exception
of the construction entrance.
o
84 A construction entrance must be installed from the public right -of -way (NE Quail Hil! Road). The
entrance shall be located to minimize removal of existing trees in the required 25400t
nonfarmed buffer and be aligned as close to 90 degrees from the public r1ght -of4ay as feasible.
9. A right•of -way permit from the City's Department of Public Works must be obtained by the
applicant for installation of the construction entrance prior to any clearing, vegetation removal,
or vegetation disturbance on the property. A copy of this permit shall be provided to the
Department of Planning and Community Development (PCD) prior to commencing any clearing
activity.
10. The haul route and any future access road /driveway shall be located outside the required 25-
foot nonfarmed buffer.
11. No drainage features {including bioretention cell and grass lined swales shown in the Drainage
Plan shall be located within the required 25 -foot nonfarmed buffer with the exception of the
bioretention cell outlet.
12. The applicant's farm plan, submitted with this application, shall be implemented within one year
after the completion of the conversion harvest. The applicant shall report the implementation of
the farm plan when complete to PCD, and it shall be inspected and verified by PCD. An extension
of up to one additional year may be granted if necessary for full implementation. Should the
owner /applicant fail to Implement the farm plan as required, this permit approval shall be
revoked pursuant to BIMC 16.22.097, and revegetation and fines as described in that section
shall apply.
13. All residual forest areas, including the 25•foot nonfarmed buffer, shall be retained In windfirm
condition pursuant to BIMC 16.22.060.A.3. Prior to commencing any clearing activity, the
applicant shall provide verification to PCD from a consulting arborist certified by the
International Society of Arboriculture (ISA) that the retained vegetation on the site will remain in
windfirm condition after the clearing activities proposed have been completed, The dimensions
of the nonfarmed buffers shall be increased and /or additional planting required as a result of
the arborisfs recommendations to ensure a windfirm condition. The buffer shall not be reduced
below the 25 -foot requirement as a result of the arborist's recommendations.
14. Any non - approved tree or vegetation removal shall be subject to the provisions of BIMC
16.22.097, Permit revocation and penalties.
15. Any retained trees that become hazardous during or after the conversion within the areas of
retained vegetation may, upon evaluation and recommendation by a professional 1SA- certified
arborist, be removed with a PCD - approved clearing permit and an approved replanting plan.
This replanting plan will require a replacement ratio of three (3) replanted trees for each one (1)
removed, and shall be required to provide like- for -like replacements (deciduous- for - deciduous
or evergreen- far - evergreen). All replacements will be required to be at least 64 feet in height if
evergreen or 2- inches in caliper If deciduous, and will be subject to an approved monitoring
program.
IV. Appeal Procedures
This administrative decision is appealable to the Hearing Examiner in accordance with the procedures
set forth in BIMC 116.a2Q.P
(Rich PLN50468) Page 6 of 7
Attachments
A. Vegetation Management Application
Be SERA checklist
C. Public comment
D. Additional information
E. Development Engineer review comments and request for information
F. Drainage Plan
G. Farm Plan
H, Code Interpretation of the Director of Planning and Community Development
(Rich PLN50468) Page 7 of 7