2017-11-06 CITY'S MOTION TO DISMISS APPEAL OF ADMIN DECISION1
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BEFORE THE CITY OF BAINBRIDGE ISLAND
OFFICE OF HEARING EXAMINER
CRYSTAL AND YURIE RICH,
Appellants,
►III
CITY OF BAINBRIDGE ISLAND, acting
through its Department of Planning and
Community Development,
Defendant.
Endless litigation leads to chaos.
No. PLN50468 VEG
MOTION TO DISMISS APPEAL OF
ADMINISTRATIVE DECISION,
REQUEST TO SUMMARILY DENY
MOTION FOR CONTEMPT, AND
PREHEARING BRIEF
Eugster v. Washington State Bar Association, 198 Wn. App. 798, 397 P.3d 131 (2017) (quoting
Schroeder v. 171.74 Acres of Land, More or Less, 318 F.2d 311, 314 (8th Cir. 1963).
I. INTRODUCTION - REQUEST FOR RELIEF
For the second time in three months, Crystal and Yurie Rich seek an order of the Hearing
Examiner essentially invalidating Project Condition No. 11 of their Vegetation Management
Permit. As the Hearing Examiner is aware, the wording of Project Condition No. 11 is clear and
unambiguous:
No drainage features (including bioretention cell and grass lined
swales shown in the Drainage Plan shall be located within the 25-
foot nonfarmed buffer with the exception of the bioretention cell
outlet.
The Riches did not appeal this condition when their permit was originally issued on
December 22, 2016 and the Hearing Examiner expressly upheld this condition when the Examiner
{ JEH1643664 .DOCX;1/13023.050016/050016 } OGDEN MURPHY WALLACE, P.L.L.C.
MOTION TO DISMISS APPEAL AND PREHEARING BRIEF - 901 Fifth Avenue, Suite 3500
I Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215
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issued his Report and Decision on Vegetation Management and SEPA Appeals on March 9, 2017.
Since the Hearing Examiner issued that decision, the Riches unsuccessfully sought the invalidation
of Project Condition No. l I by means of a "Motion to Clarify," which the Hearing Examiner
rejected on August 8, 2017. Now, having failed to have Project Condition No. 11 nullified by any
of other means they have tried, the Riches return to the Hearing Examiner, arguing that a letter
issued by the City's Development Engineer, Peter Corelis, on October 4, 2017 requesting
additional information on their drainage plan was an appealable "decision" or a "new
interpretation" of Project Condition No. 11, allowing the Riches to bring this appeal and to ask the
Hearing Examiner to find the City in contempt for enforcing Condition No. 11 and the City's
drainage code as written by not allowing the Riches to proceed with clearing until a code and
condition - compliant plan is submitted. A copy of Mr. Corelis's letter is attached to this Motion
and Brief as Exhibit A.
Sections 4.1 and 4.2 of the Bainbridge Island Hearing Examiner Rules authorize the
i summary dismissal of appeals:
4.1 An appeal may be dismissed without a hearing if the Hearing
Examiner determines that it fails to state a claim for which
the Hearing Examiner has jurisdiction to grant relief or if it
is without merit on its face, frivolous, or brought merely to
secure delay.
4.2 Any Party of Record may request dismissal of all or part of
an appeal at any time with notice to all parties. The
Examiner may make a ruling on a motion to dismiss based
upon written arguments or may call for oral arguments.
The litigation and relitigation of a condition that the Riches and their attorneys failed to appeal has
got to stop. The City respectfully urges the Hearing Examiner to end this chaos by granting the
City's motion to dismiss the appeal without a hearing and by summarily denying the motion for
contempt without oral argument.
{ JEH1643664 .DOCX;1/13023.050016/050016 } OGDEN MURPHY WALLACE, P.L.L.C.
MOTION TO DISMISS APPEAL AND PREHEARING BRIEF - 901 Fifth Avenue, Suite 3500
2 Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215
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II. MOTION TO DISMISS ADMINISTRATIVE APPEAL AND REQUEST TO
SUMMARILY DENY THE MOTION FOR CONTEMPT
A. MR. CORELIS' OCTOBER 4 LETTER WAS NOT AN APPEALABLE
ADMINISTRATIVE DECISION UNDER THE BIMC AND THE APPEAL
THEREFORE FAILS TO STATE A CLAIM AND IS WITHOUT MERIT ON ITS
FACE.
The Riches incorrectly characterize the October 4, 2017 letter from Mr. Corelis as an
appealable decision under the Bainbridge Island Municipal Code ( "BIMC "). BIMC
2.16.020(P)(1)(a) provides that "all administrative decisions, departmental rulings and
interpretations made in accordance with administrative review procedures of BIMC 2.16.030...
may be appealed to a hearing examiner." While the terms "administrative decisions,"
"departmental rulings," and "interpretations" are not explicitly defined in BIMC 2.16.020(P)(1)(a),
the reference to BIMC 2.16.030 is instructive on what constitutes a "decision," "ruling," or
"interpretation" for purposes of an appeal. BIMC 2.16.030 clearly refers only to final decisions
made by a department director on land use applications. See, e.g., BIMC 2.16.030(A) ( "The
purpose of this section is to establish procedures for administrative decision - making on land use
applications "); BIMC 2.16.030(D)(1) ( "In making the decision, the department director shall
consider the applicable decision criteria of this code "); BIMC 2.16.030(F) ( "The department
director may approve, approve with conditions, or deny the application based on the decision
criteria); and BIMC 2.16.030(H) ( "The decision of the department director is the final decision of
the city, subject to the appeal provisions in BIMC 2.16.020.P "). Thus, for the Hearing Examiner
to have appellate jurisdiction under BIMC 2.16.020(P), there must first be a final decision by the
department director under BIMC 2.16.030.
In the present case, the October 4 letter from Mr. Corelis is a request for additional
information, not a final decision. The letter states, in its subject line, that it is an "Information
Request for Permit Application PLN50468 VEG." In its third paragraph, the letter states that
certain information concerning the clearing/land conversion limits and the sizing of the drainage
facilities is missing from the plan and that
{ JEH1643664 .DOCX;1/13023.050016/050016 } OGDEN MURPHY WALLACE, P.L.L.C.
MOTION TO DISMISS APPEAL AND PREHEARING BRIEF - 901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
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Tel: 206.447.7000/Fax: 206.447.0215
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As a result of such missing information, the drainage plan and report
are deficient. Due to that deficiency, the City doesn't have the
information to determine, for example, whether the flow control
mitigation proposed for the development meets the required
approval standards and thresholds in BIMC 15.20.060.B.
The letter then lays out the "additional information and plan changes" that "are necessary to
conform the drainage report and plan to the City's regulatory requirements" and closes by asking
the Riches to "please submit the requested information and documentation addressing the above
comments" to Mr. Corelis. In short, the letter requests information only and there is nothing in
the letter that suggests it is a final decision on the drainage plan or on any other land use
application that is appealable under BIMC 2.16.020(P) and 2.16.030.
Because Mr. Corelis' letter is not a final decision of the City, the appeal fails to state a
claim for which the Hearing Examiner has jurisdiction to grant relief. The appeal is also clearly
without merit on its face, since no final decision has been made on the Riches' drainage plan. The
appeal must therefore be dismissed under Sections 4.1 and 4.2 of the Hearing Examiner's Rules
of Procedure.
B. THE HEARING EXAMINER HAS NO POWER TO HOLD THE CITY IN
CONTEMPT AND TO IMPOSE SANCTIONS. THE RICHES' MOTION FOR
CONTEMPT IS THEREFORE FRIVOLOUS, WITHOUT MERIT, AND BEYOND
THE JURISDICTION OF THE HEARING EXAMINER.
In addition to filing an administrative appeal in this matter, the Riches have stylized the
pleading they filled on October 17, 2017 as a "Motion for Contempt." As is too often the case with
the Riches' attorneys, however, the pleading runs on for many pages without ever explicitly
making such a motion, much less stating the legal authority for the Hearing Examiner to grant it.
In fact, the sole mention of "contempt" comes in Section 8.0 of the prayer for relief, in which the
Riches request an order vacating Mr. Corelis' request for information with instructions to the City
to immediately allow the Riches to proceed with clearing "or suffer entry of a (sic) Order of
Contempt and Sanctions." To the extent the Riches seek an order of contempt and sanctions in this
matter, the request is both legally and factually unsupported and must be summarily denied.
{ JEH1643664 .DOCX;1/13023.050016/050016 } OGDEN MURPHY WALLACE, P.L.L.C.
MOTION TO DISMISS APPEAL AND PREHEARING BRLEF - 901 Fifth Avenue, Suite 3500
4 Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215
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While Washington courts of general jurisdiction have the inherent constitutional power to
enter orders of contempt and to impose sanctions, Deskins v. Waldt, 81 Wn.2d 1, 2, 499 P.2d 206
(1972); State v. Eskill, 55 Wn.2d 576, 579 -81, 349 P.2d 210 (1960); Blanchard v. Golden Age
Brewing, 188 Wash. 396, 408, 63 P.2d 397 (1936), hearing examiners have no such inherent
powers. Hearing examiners and other quasi - judicial administrative tribunals
are creatures of the legislative body that creates them, Jaramillo v.
Morris, 50 Wn. App. 822, 829, 750 P.2d 1301 (1988), review
denied, 110 Wn.2d 1040; State v. Munson, 23 Wn. App. 522, 524,
597 P.2 440 (1979); Chausee v. Snohomish Cy. Coun., 38 Wn. pp.
630, 636, 669 P.2d 1084 (1984), and their power is limited to that
which the legislative body grants. State ex rel. PUD No. 1 v.
Department of Pub. Serv., 21 Wn.2d 201, 208 -09, 150 P.2d 709
(1944). They cannot possess inherent power because by definition
such power is power not granted yet still possessed. Black's Law
Dictionary 782, 1170 (6th ed. 1990). Thus, quasi-judicial power
cannot be inherent, Human Rights Comm'n v. Cheney Sch. Dist. 30,
97 Wn.2d 118, 125, 641 P.2d 163 (1982) (quoting State v. Munson,
supra; Jaramillo v. Morris, supra; Chausee v. Snohomish Cy.
Coun.. supra), and administrative tribunals lack inherent power to
reconsider their own final decisions. State ex rel. Worsham v.
Brown, 125 Wash. at 176 -77; State ex rel. Hearty v. Mullin, 198
Wash. 99, 87 P.2d 280 (1939). See generally, Annot., Power of
Administrative Agency to Reopen and Reconsider Final Decision as
Affected by Lack of Statutory Authority, 73 A.L.R.2d 939 (1960).
(Footnote omitted). Lejeune v. Clallam County, 64 Wn. App. 257, 270 -71, 823 P.2d 1144 (1992).
Thus, for the Hearing Examiner to possess the power to find the City in contempt and to impose
sanctions, that power must be expressly granted by the legislative authority that created the
Hearing Examiner's office.
In the City of Bainbridge Island, the legislative authority is the Bainbridge Island City
Council. The Council has granted the Hearing Examiner power over administrative appeals in two
sources of authority. First, in BIMC 2.16.020(P)(1), the Council has given the Hearing Examiner
the power to hear and decide appeals that are timely filed. Second, under the Hearing Examiner
Rules, which have been adopted and approved by the Council through Bainbridge Island City
Council Resolution No. 2003 -14, the Council has given the Hearing Examiner the power to
conduct hearings, render decisions, and hear motions for reconsideration that are timely filed.
{ JEH1643664 .DOCX;1/13023.0 50 0 1 6/0 500 1 6 ) OGDEN MURPHY WALLACE, P.L.L.C.
MOTION TO DISMISS APPEAL AND PREHEARING BRIEF - 901 Fifth Avenue, suite 3500
5 Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215
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gull
Nowhere in either of these two sources of authority has the City Council granted the Hearing
Examiner the power to enter orders of contempt or to impose sanctions and the Hearing Examiner
has no inherent power to do so. Because the Hearing Examiner has not been granted the power to
enter orders of contempt and to impose sanctions, the Riches' request that the Examiner do so fails
to state a claim within the jurisdiction of the Examiner and is without merit on its face. The Hearing
Examiner should exercise his authority under Hearing Examiner Rules 4.1 and 4.2 and summarily
deny the motion for contempt based on lack of legal authority.
More importantly, however, the City has taken no actions regarding the Riches' Vegetation
Management Permit that could remotely serve as the basis for a contempt finding. The Riches
argue that the City has wrongly refused to issue a notice to proceed with the clearing of their
property because the clearing is totally unrelated to the need for a compliant drainage plan. This
assertion is without merit. Attached as Exhibit B is a Declaration of Peter Corelis that was filed
in a writ of mandamus action that the Riches brought against the City in September 2017. As the
declaration states:
If the Riches clear the areas they intend to clear, additional drainage
will be generated. The drainage from those areas will not meet the
flow control standards and will flow in an uncontrolled manner off -
site in direct violation of the BIMC and Minimum Requirement 7.
The Riches have shown no willingness to provide flow control for
the areas they proposed to clear in the 25 -foot perimeter buffer and
they have adamantly refused to submit a compliant drainage plan for
those areas despite numerous attempts by the City to get them to do
so. Until the Riches show that they can and will provide flow control
for all cleared areas, not just the areas inside (sic — actually outside)
the 25 -foot perimeter buffer, the City cannot allow those areas to be
cleared. Allowing the clearing under these circumstances would
violate the City's stormwater regulations.
The clearing is thus inextricably tied to the need for a compliant drainage plan: the clearing is what
results in the increased drainage that will need to be collected and disposed of as the City's code
requires. Without a plan showing that all of the increased drainage will be collected and properly
disposed of, the clearing is not in compliance with the BIMC and cannot be allowed to occur. The
{ JEH1643664 .DOCX;1/13023.050016/050016 } OGDEN MURPHY WALLACE, P.L.L.C.
MOTION TO DISMISS APPEAL AND PREHEARING BRIEF - 901 Fifth Avenue, Suite 3500
6 Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215
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relationship between the clearing and the need for a compliant drainage plan is obvious, even if
the Riches wilfully refuse to recognize it.
The Riches also complain that the City has engaged in some "new interpretation" of Project
Condition No. 11 and that this interpretation is in defiance of the Hearing Examiner's decision that
the Riches were not required to preserve the native vegetation in the 25 -foot nonfarmed buffer.
This again is without merit. There has been no interpretation of Project Condition No. 11 because
that condition is clear and unambiguous on its face. All the City has done is to request that the
Riches submit a drainage plan that complies with Project Condition No. 11 of the Riches'
Vegetation Management Permit and that provides for the stormwater runoff of the entire property,
including the nonfarmed buffers, to be collected and disposed of in the manner required by the
City's drainage regulations. Project Condition No. 11 is clear and unambiguous: "No drainage
features... shall be located in the 25 -foot nonfarmed buffer." The City's drainage regulations,
specifically BIMC 15.20.060(B), are also clear and unambiguous, requiring that whenever the
development of property will result in more than 3/ of an acre of vegetation being converted to
lawn or landscaped area, or will result in more than 2.5 acres of vegetation being converted to
pasture, the property owner's drainage system must meet the flow control standards of Minimum
Requirement No. 7 of the Washington State Department of Ecology's Stormwater Management
Manual for Western Washington ( "the Manual "). Minimum Requirement No. 7 requires the
collection, detention and /or infiltration, and release of all stormwater runoff from the developed
property to off -site systems at a rate which is no greater than the rate at which the runoff was
released prior to development.
Instead of meeting these unambiguous requirements, the Riches refused to provide a
drainage plan that met Project Condition No. 11 until September 5, 2017, almost five months to
the day after the Hearing Examiner expressly upheld that condition in his March 9, 2017 Report
and Decision on Vegetation Management and SEPA Appeals. And while the September 5, 2017
plan showed the drainage facilities moved out of the buffer, it did not show that all of the drainage
{ JEH1643664 .DOCX;1/13023.050016/050016 } OGDEN MURPHY WALLACE, P.L.L.C,
MOTION TO DISMISS APPEAL AND PREHEARING BRIEF - 901 Fifth Avenue, suite 3500
7 Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215
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from the site would be captured and disposed of as required by the Manual. Instead, the drainage
plan left a significant portion of the site without a connection to the drainage facilities and failed
to show that the bioretention cell was adequately sized to accommodate all of the drainage from
the site. Since Mr. Corelis issued his October 4, 2017 letter pointing this out and requesting further
information as to how the drainage from those cleared areas would be captured and disposed of,
the Riches have adamantly refused to provide the required information, choosing instead to file
this appeal and to ask the Hearing Examiner to hold the City in contempt, apparently for simply
enforcing Project Condition No. 11 and the City's drainage codes as written.
The City is not in contempt for enforcing Project Condition No. 11 as written and requiring
the Riches to submit a drainage plan that complies with that condition and that complies with the
City's stormwater regulations before allowing clearing to take place. The Riches' motion for
contempt is without merit and is frivolous on its face. The Hearing Examiner should exercise his
authority under Section 4.1 and 4.2 of the Hearing Examiner Rules and summarily deny the motion
for contempt without proceeding to hearing on this matter.
III. PREHEARING BRIEF ON ADMINISTRATIVE APPEAL
A. MR. CORELIS' REQUEST FOR INFORMATION IS JUSTIFIED BY PROJECT
CONDITION NO 11 AND THE CITY'S STORMWATER REGULATIONS.
If the Hearing Examiner denies the City's Motion to Dismiss and Request for Summary
Denial of Motion for Contempt, the Hearing Examiner should nevertheless uphold Mr. Corelis'
request for additional information and should not allow the Riches to proceed with clearing until
a compliant drainage plan is submitted and approved. As set out in detail above, Mr. Corelis'
request for information is based on Minimum Requirement No. 7 of the Manual, as adopted in
BIMC 15.20.060(B). Minimum Requirement No. 7 requires all areas to be cleared to meet the flow
control standards and not to discharge off -site at a rate that is greater than the rate at which runoff
was released predevelopment. The requirement for a code - compliant drainage plan is inextricably
connected to the clearing of the Rich property, because the clearing will create increased drainage
{ JEH1643664 .DOCX;1/13023.050016/050016 } OGDEN MURPHY WALLACE, P.L.L.C.
MOTION TO DISMISS APPEAL AND PREHEARING BRIEF - 901 Fifth Avenue, suite 3500
g Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215
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that will not be captured under the September 5, 2017 drainage plan submitted by the Riches and
will therefore not meet the flow control standards of Minimum Requirement No. 7. Because the
cleared areas will not meet that drainage requirement, allowing the clearing to proceed will violate
the BIMC and Mr. Corelis rightly requested additional information and plan changes in order to
avoid that violation. The Hearing Examiner should uphold Mr. Corelis' request for information
and should not allow clearing to take place on the Rich property until a compliant drainage plan is
submitted.
B. THE VALIDITY OF PROJECT CONDITION NO. 11 IS NOT PROPERLY
BEFORE THE HEARING EXAMINER IN THIS APPEAL.
The City fully expects the Riches to again argue that Project Condition No. 11 is invalid
that the Hearing Examiner should order the City to ignore the condition and allow drainage
facilities to be located in the 25 -foot nonfarmed buffer. In the alternative, the City expects the
Riches to argue that the Hearing Examiner should ignore the City's drainage regulations and allow
clearing to occur with a significant portion of the Rich property not meeting the flow control
standards of Minimum Requirement No. 7. Neither of these arguments has merit.
As the City has pointed out repeatedly in these proceedings, Project Condition No. 11 was
not appealed by the Riches, was expressly upheld by the Hearing Examiner in his March 9, 2017
decision on the Riches' appeal, was not made the subject of any motion of reconsideration before
the Hearing Examiner or any LUPA appeal filed by the Riches, and was not nullified by the
Hearing Examiner in his August 8, 2017 Order Dismissing Request to Reopen Vegetation
Management Appeal for Clarification. Public policy strongly favors the finality of land use
decisions. Skamania County v. Columbia River Gorge Comm'n., 144 Wn.2d 30, 49, 26 P.3d 241
(2001); Deschenes v. King County, 83 Wn.2d 714, 717, 521 P.2d 1181 (1974). Where a land use
decision is not timely appealed under the Land Use Petition Act, the decision is res judicata and is
binding on all parties involved. Habitat Watch v. Skagit County, 155 Wn.2d 397, 406 -07, 120 P.3d
56 (2005); Hanna v. Margitan, 193 Wn. App. 596, 611, 373 P.3d 300 (2016); Brotherton v.
{ JEH1643664 .DOCX;1/13023.050016/050016 } OGDEN MURPHY WALLACE, P.L.L.C.
MOTION TO DISMISS APPEAL AND PREHEARING BRIEF - 901 Fifth Avenue, Suite 3500
9 Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215
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Jefferson County, 160 Wn.App. 647, 248 P.3d 597 (2011). By not appealing Project Condition
No. 11 at the appropriate stage of these proceedings, the Riches forfeited all rights to have that
condition overturned by the Hearing Examiner. The condition as written stands and may no longer
be challenged in these proceedings.
C. THE RICHES MUST COMPLY WITH THE CITY'S DRAINAGE REGULATIONS
AND THE HEARING EXAMINER HAS NO AUTHORITY TO WAIVE
COMPLIANCE.
The
drainage regulations at issue
in this appeal are
found
in BIMC Chapter 15.20.
According
to BIMC 15.20.040(1)(a), all
new development
that
involves "land disturbing
activities" requires compliance with the City's drainage regulations. BIMC 15.20.010(22) states
that "Land disturbing activities include, but are not limited to, clearing, grading, filling and
excavation." Because the Riches have applied to clear more than five acres of their property, there
can be no dispute that the requirements of BIMC Chapter 15.20 apply to their development.
As set forth in the Declaration of Peter Corelis submitted with this pleading and as will be
testified to by Mr. Corelis at the hearing if the City's motion to dismiss is not granted, the
September 5, 2017 drainage plan submitted by the Riches does not show how they will comply
with the City's drainage regulations. BIMC 15.20.060(B) requires that whenever the development
of property will result in more than 3/ of an acre of vegetation being converted to lawn or
landscaped area, or will result in more than 2.5 acres of vegetation being converted to pasture, the
property owner's drainage system must meet the flow control standards of the Manual. Minimum
Requirement No. 7 of the Manual requires that the drainage from all cleared areas of the site be
collected and either detained or infiltrated, and that all drainage released off -site must be released
at a rate that does not exceed the predevelopment runoff rate. As attested to by Mr. Corelis in his
letter and in his Declaration, the September 5, 2017 does not show how a significant portion of the
Rich property will comply with this standard, specifically all of the areas within the 25 -foot
nonfarmed buffer and an area located westward of the bioretention cell (between the bioretention
cell and Sands Avenue). The drainage plan as submitted therefore does not comply with the City's
(JEH1643664 .DOCX;1/13023.050016/050016 ) OGDEN MURPHY WALLACE, P.L.L.C.
MOTION TO DISMISS APPEAL AND PREHEARING BRIEF - 901 Fifth Avenue, suite 3500
I O Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215
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drainage regulations and Mr. Corelis rightly requested more information about how the Riches
intended to modify it to comply.
The Riches incorrectly argue that it is impossible for them to comply with both Project
Condition No. 11 and the City's drainage regulations. In his Declaration attached as Exhibit B,
Mr. Corelis states that it is possible to comply with both and he suggests at least three possible
methods of doing so: (a) reducing the amount of clearing in the 25 -foot buffer or elsewhere in
order to limit the clearing to the 5.07 acres that the drainage system provides flow control for; (b)
increasing the size of the bioretention cell and routing drainage from all of the cleared areas to it;
or (c) revegetating a portion of the cleared areas to a level where the City's stormwater model
shows that the runoff from the entire site can be handled by the drainage system in a manner that
meets the flow control standards. While the Riches may argue that these methods of compliance
are either more expensive than they planned for or that they do not allow them to clear every area
that they wish to clear, these facts are irrelevant in these proceedings. The fact is that the Riches
failed to appeal Project Condition No. 11 and that they must comply with it. The fact is that the
Riches are clearing more than the minimum necessary to require them to comply with Minimum
Requirement No. 7 of the Manual, as adopted by BIMC 15.20.050 and BIMC 15.20.060(B). The
fact is that the Riches' proposed clearing will create increased drainage which the drainage plan
shows will not meet the drainage requirements of the BIMC. And the fact is, that until the Riches
submit a plan that complies with both Project Condition No. 11 and the City's drainage regulations,
which Mr. Corelis' Declaration and his testimony will demonstrate is possible, there is no
assurance that the Riches will meet the City's drainage requirements.
The Riches also seem to be taking the position that by holding that the Riches could clear
within the 25 -foot nonfarmed buffer prescribed by the code, the Hearing Examiner somehow
intended to either "subordinate" Project Condition No. 11 to that clearing decision or exempt the
Riches from the City's drainage regulations. This is incorrect. There is nothing in the Hearing
Examiner's decision that says Project Condition No. 11 is superseded by or subordinated to the
{ JEH1643664 .DOCX;1/13023.050016/050016 } OGDEN MURPHY WALLACE, P.L.L.C.
MOTION TO DISMISS APPEAL AND PREHEARING BRIEF - 901 Fitch Avenue, Suite 3500
1 1 Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215
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Hearing Examiner's ruling on clearing in the buffers, and the Hearing Examiner's decision
expressly upheld all project conditions other than those that were expressly modified, including
Project Condition No. 11. There is also nothing in the Hearing Examiner's decision that in any
way can be construed as exempting the Riches from the requirements of BIMC 15.20. The Riches
argument finds no support in the Hearing Examiner's decision and the Hearing Examiner
obviously did not intend his decision to be a blanket waiver of the City's drainage requirements.
Finally, even if the Hearing Examiner had wanted to exempt the Riches from the City's
drainage requirements, the Hearing Examiner has no authority to do so. As pointed out above, the
Hearing Examiner has only such powers as are granted to him under the BIMC or under the
Hearing Examiner Rules. Neither BIMC Chapter 15.20 nor the Hearing Examiner Rules give the
Hearing Examiner the authority to grant exceptions to the stormwater regulations. The Hearing
Examiner is therefore without authority to do so and the Riches must meet the City's drainage
requirements.
IV. RESPONSE TO MOTION FOR CONTEMPT
For the reasons set forth in Section II(B), above, the Hearing Examiner should deny the
motion for contempt. The Hearing Examiner lacks authority to hold the City in contempt and even
if the Hearing Examiner had such authority all the City has done is to enforce the project conditions
of the permit and the City's stormwater regulations as written. No contempt exists.
V. CONCLUSION
The Hearing Examiner should summarily dismiss this appeal without a hearing under
Hearing Examiner Rules 4.1 and 4.2 because the Riches are appealing a request for information,
not a final decision of the City. The Hearing Examiner should also summarily deny the motion
for contempt because the Hearing Examiner lacks authority to hold the City in contempt and
because the City has only enforced the project conditions of the Vegetation Management Permit
that were upheld by the Hearing Examiner as written and the City's drainage regulations as written.
If this matter goes to hearing, the Hearing Examiner should uphold Mr. Corelis' request for
{ JEH1643664 .DOCX;1/13023.0 500 1 6/0 500 1 6 } OGDEN MURPHY WALLACE, P.L.L.C.
MOTION TO DISMISS APPEAL AND PREHEARING BRIEF - 901 Fifth Avenue, suite 3500
12 Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215
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information as the request is entirely justified under Project Condition No. 11 and Minimum
Requirement No. 7 of the Manual, as adopted by the City in BIMC Chapter 15.20. The Hearing
Examiner must deny any request by the Riches to be allowed to clear in violation of the City's
drainage regulations or to be allowed to clear without a compliant drainage plan. The City
respectfully requests that the Hearing Examiner dismiss the appeal and deny the motion for
contempt.
DATED this 6th day of November, 2017.
OGDEN -URPHY WALLACE, P.L.L.C.
i
By'G"`�
James E. Ha (6y, WSBA # 0 8
Attorney for Defendants
City of Bainbridge Island rl
{ JEH1643664 .DOCX;1/13023.0 5 00 1 6/0 500 1 6 } OGDEN MURPHY WALLACE, P.L.L.C.
MOTION TO DISMISS APPEAL AND PREHEARING BRIEF - 901 Fifth Avenue, Suite 3500
I3 Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215
EXHIBIT A
CITY OF
13 BAINBRTDGE
ISLAND
Department of Public Works - Engineering
October 4, 2017
Crystal and Yurie Rich
P.O. Box 11604
Bainbridge Island, WA 98110
VIA EMAIL — richclan @native6.com
RE: Information Request for Permit Application PLN50468 VEG
Dear Ms. and Mr. Rich:
I reviewed and analyzed your stormwater drainage plan and report, submitted to the City of Bainbridge
Island on September 5, 2017, in support of your vegetation management permit, permit number
PLN50468 VEG, to convert more than five acres of forest or native vegetation to a combination of
pasture and /or other surfaces at 8236 Sands Avenue NE. Based on my review and analysis of the plan
and the report that you submitted, additional information and plan changes are necessary to conform
the drainage report and plan to the City's regulatory requirements. See, e.g., BIMC 15.20.060.13 (relating
to flow control and other mitigation for new development).
Those regulatory requirements also include Project Condition No. 11, which was upheld by the Hearing
Examiner in the Examiner's Order Dismissing Request to Reopen Vegetation Management Appeal for
Clarification (issued August 8, 2017). As you know, Condition No. 11 states:
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.
Based on my review of the drainage plan and report as submitted, the areas shown in the drainage plan
and tabulated and modeled in the drainage report agree. As such, in that the drainage plan and report
as submitted don't include the nonfarmed buffer areas to be cleared and converted, those nonfarmed
buffer areas aren't accounted for in the modeling or rain garden sizing. Additionally, the drainage plan
doesn't show a clearing /land conversion limit, which is information the City needs to verify the clearing
limits. As a result of such missing information, the drainage plan and report are deficient. Due to that
deficiency, the City doesn't have the information to determine, for example, whether the flow control
mitigation proposed for the development meets the required approval standards and thresholds in
B I M C 15.20.060. B.
Page 1 of 2
The following additional information and plan changes are necessary to conform the drainage report
and plan to the City's regulatory requirements:
The sizing of the bioretention cell according to the Browne and Wheeler Engineering report,
dated August 5, 2017, assumes out of a total land area of 5.07 acres that 4.48 acres will be
collected and treated by the facility, with 0.58 acres located west of the facility bypassing
treatment. Of the areas analyzed in the drainage report and captured by the bioretention facility
or bypassed, the 25 -foot perimeter nonfarm buffer is not included in the analysis to be
mitigated for stormwater impacts by treatment in the bioretention facility. Please address this
gap of information in the drainage report and plan by providing the following:
1. A revised drainage plan that clearly shows all clearing limits of land to be converted from
forest or native vegetation to pasture, orchard, landscaping or some other land cover
surface;
2. The revised drainage plan must also clearly show how stormwater runoff emanating from
the additional land to be converted (i.e., the land within the 25 -foot nonfarmed buffer) will
be captured and treated, as required to meet the flow control requirements for the entirety
of the property. Limiting clearing and conversion in the nonfarm buffer will eliminate
additional mitigation requirements;
3. A revised drainage report documenting that the stormwater impacts for all of the proposed
cleared land /converted land are accounted for and the mitigation (e.g., bioretention facility)
is properly sized to meet the flow control requirements. Addressing additional impacts
caused by any nonfarm buffer area conversions may be addressed by moving the
bioretention cell westward to capture and detain more surface runoff, increasing the cell
size, or, removing the diversion swale along the north perimeter to capture and treat
additional stormwater as offset mitigation; and
4. If the land intended to be cleared /converted is accurately represented by the drainage
report that you submitted on September 5, 2017, please so indicate in your response.
Please submit the requested information and documentation addressing the above comments to me via
the Department of Planning and Community Development for further review. I can be reached at
pcorelis@bainbridgewa.gov or at (206) 780 -3759 to assist you.
Respectfully,
Peter Corelis, P.E.
Development Engineer
Cc: Christy Carr— Senior Planner, PCD
Page 2 of 2
EXHIBIT B
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SUPERIOR COURT OF WASHINGTON
KITSAP COUNTY
CRYSTAL AND YURIE RICH, husband
and wife,
Plaintiff,
V.
CITY OF BAINBRIDGE ISLAND, acting
through its Department of Planning and
Community Development,
Defendant.
No. 17 -2- 01695 -2
DECLARATION OF PETER
CORELIS
I, PETER CORELIS, make the following statement based on personal knowledge:
1. I am a licensed professional engineer in the state of Washington and I serve as the
Development Engineer for the City of Bainbridge Island.
2. I am over the age of 18, am competent to testify herein, and have personal
knowledge of each and every fact set forth in this Declaration.
3. As the City of Bainbridge Island's Development Engineer, I review private
development proposals to determine whether the requirements of the City's storm drainage
regulations are met. My duties also include conducting clearing limits inspections on private
developments to determine whether the clearing limits delineated on a particular site match what
is shown on approved clearing plans and whether the means and methods of delineation are correct.
{] EH1635484 .DOCX;1/13023.050025/050025 )
DECLARATION OF PETER CORELIS - l
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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3. I have reviewed the current drainage plan submitted by Crystal and Yurie Rich to
the City of Bainbridge Island on September 5, 2017. A copy of the plan I reviewed is attached to
this Declaration as Exhibit A.
4. As submitted, the plan does not comply with the City's storm drainage regulations.
Section 15.20.060(B) of the Bainbridge Island Municipal Code ( "BIMC ") requires that whenever
the development of property will result in more than 3/4 of an acre of vegetation being converted
to lawn or landscaped area, or will result in more than 2.5 acres of vegetation being converted to
pasture, the property owner must meet the flow control standards of Minimum Requirement No.
7 of the Washington State Department of Ecology's Stormwater Management Manual
( "Stormwater Manual') for Western Washington. "Flow control" refers to control of the volume,
rate, frequency, and duration of stormwater surface runoff from a developed site. Under the BIMC
and Minimum Requirement 7 of the Stormwater Manual, all stormwater surface runoff from a
developed site must be collected, detained and/or infiltrated on site, and released to off -site
drainage systems at a rate which is no greater than the rate at which the runoff was released prior
to development. For a property owner to be allowed to clear and develop their property, the BIMC
requires that the owner submit a drainage plan demonstrating that these requirements are met.
5. The Rich property is approximately 6.96 acres in size and is currently forested. The
Riches have proposed to clear almost all of the property, leaving only a 25 -foot wide strip along
the extreme western boundary and a small portion of the northwestern boundary in native
vegetation. The Riches plan to convert the cleared areas to a combination of pasture, landscaped
areas, and areas on which they will build a home and structures to house their anticipated livestock.
The development proposed by the Riches is therefore required by the BIMC and Minimum
Requirement 7 to provide flow control as demonstrated by an approved drainage plan.
6. The current drainage plan submitted by Crystal and Yurie Rich does not meet the
flow control requirements of the BIMC and Minimum Requirement 7 of the Stormwater Manual.
According to the drainage report prepared by the Riches' engineer, Adam Wheeler, and submitted
{ JEH1635484 .DOCX;1/13023.050025/050025 )
DECLARATION OF PETER CORELIS - 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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with the drainage plan, the bioretention cell and associated drainage facilities that the Riches intend
to use to provide flow control is sized to accommodate drainage from 5.07 acres of cleared area.
I verified Mr. Wheeler's calculations using a software model that the City uses to review drainage
plans and reports. This 5.07 acres includes only clearing proposed by the Riches in the interior of
the property and does not include any areas that the Riches intend to clear within a 25 -foot wide
"nonfarmed buffer" that the Riches are required to maintain along the entire perimeter of the
property. While the Riches are allowed to clear within this 25 -foot wide buffer, the BIMC and
Minimum Requirement 7 of the Stormwater Manual require that those stormwater surface runoff
from those cleared areas must be collected, detained and/or infiltrated on site, and released
consistent with the flow control standards. Because the currently submitted drainage plan does
not provide flow control measures for the areas the Riches propose to clear within the 25 -foot
perimeter buffer, the plan does not meet the BIMC and the Stormwater Manual and cannot be
approved. Approval of the plan as submitted would allow the Riches to violate BIMC
15.20.060(B) and the incorporated Minimum Requirement 7 of the Stormwater Manual.
7. The Riches claim that their clearing is unrelated to approval of the permanent
drainage plan and that the City should therefore allow them to clear, despite the fact that their
permanent drainage plan does not comply with the City's Code. I strongly disagree. If the Riches
clear the areas they intend to clear, additional drainage will be generated. The drainage from those
areas will not meet the flow control standards and will flow in an uncontrolled manner off -site in
direct violation of the BIMC and Minimum Requirement 7. The Riches have shown no willingness
to provide flow control for the areas they propose to clear in the 25 -foot perimeter buffer and they
have adamantly refused to submit a compliant drainage plan for those areas despite numerous
attempts by the City to get them to do so. Until the Riches show that they can and will provide
flow control for all cleared areas, not just the areas inside the 25 -foot perimeter buffer, the City
cannot allow those areas to be cleared. Allowing the clearing under these circumstances would be
a violation of the City's stormwater regulations.
(JEH1635484 .DOCX;1/13023.050025/050025 )
DECLARATION OF PETER CORELIS - 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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8. The Riches claim that it is impossible for them to meet the flow control
requirements for the cleared areas in the 25 -foot buffer because a condition of the Vegetation
Management Permit they obtained to authorize the clearing of their property requires them to
locate all drainage facilities outside of the 25 -foot buffer. The condition the Riches are referring
to is Condition No. 11 of the Vegetation Management Permit they obtained to clear their property,
which reads as follows:
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.
This condition has been a condition of the Riches Vegetation Management Permit since the permit
was issued on December 22, 2016. The Riches never appealed this condition and the City Hearing
Examiner's March 9, 2017 decision on the Riches' appeal of other permit conditions expressly
upheld Condition 11. The Hearing Examiner also denied a later request by the Riches to "clarify"
his ruling to delete the Condition 11. As the City's Development Engineer, I am required to
enforce the condition as written and upheld by the Hearing Examiner.
9. The condition is not impossible to comply with, as the Riches contend. The Riches
could comply in a number of ways, including but not limited to, (a) reducing the amount of clearing
in the 25 -foot perimeter buffer or elsewhere in order to limit the clearing to the 5.07 acres their
drainage plan provides flow control for, (b) increasing the size of the biorentention cell and routing
drainage from the additional cleared areas to it, or (c) revegetating a portion of the cleared areas.
There are solutions to the problem if the Riches will simply revise their drainage plan to take
advantage of those solutions. Under the City's stormwater regulations, it is incumbent on permit
applicants like the Riches to submit a code - compliant drainage plan. Thus far, the Riches have
refused to do so.
10. The Riches also claim that the City has improperly refused to inspect the clearing
limit delineation on their property. This is incorrect. The City has not wanted to inspect the
(JEH1 635484 .DOCX;1 /13023.050025/050025 }
DECLARATION OF PETER CORELIS - 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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clearing limit delineation because those limits may change depending upon what option the Riches
choose to comply with the drainage plan requirements. It makes little sense for the City to inspect
clearing limits which it cannot approve because the drainage plan does not account for those areas.
Despite this noncompliance, however, I visited the site on October 9, 2017 to better understand
what the Riches were proposing to clear and to review the means and methods the Riches had used
to delineate the areas they proposed to clear. I found that the means and methods of delineation
were appropriate, but I also confirmed that the Riches wish to clear a far larger area than what their
drainage plan will provide flow control for. My inspection of the clearing limits confirmed that
allowing the clearing to occur would violate the BIMC and Minimum Requirement 7 of the
Stormwater Manual because of the lack of flow control for all areas proposed to be cleared.
11. I respectfully request that the Court deny the Riches' application for an order
requiring the City to allow the clearing to proceed and to allow the drainage facilities for the
property to be located within the 25 -foot perimeter buffer in violation of Condition 11 of the
Riches' Vegetation Management Permit or to require the City to approve a drainage plan that does
not meet the flow control requirements of the BIMC and the Stormwater Manual. A court order
requiring any of these things would require the City to violate its own codes and would result in
the uncontrolled flow of stormwater runoff from the Riches' property onto other properties in the
vicinity and into off -site drainage systems.
I declare under penalty of perjury under the laws of the State of Washington that the
foregoing is true and correct.
EXECUTED at Bainbridge Island, Washington this 12'h day of October, 2017.
Peter Corelis, P.E.
DECLARATION OF SERVICE
(JEH1635484.DOCX;1/13023.050025 /050025 }
DECLARATION OF PETER CORELIS - 5
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.02 l5
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I, Gloria Zak, make the following true statement.
On the 121h day of October, 2017, I provided the Declaration of Peter Corelis by facsimile
and electronic mail to the following:
Original Via Facsimile:
Copy via E -mail and Regular Mail:
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 25" day of September, 2017.
( JEH1635484 .DOCX;1/13023.050025/050025 )
DECLARATION OF PETER CORELIS - 6
Charolette Mace
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206,447.0215
DECLARATION OF SERVICE
I, Gloria Zak, make the following true statement.
On the 6"' day of November, 2017, I provided this Motion to Dismiss Appeal of
Administrative Decision, Request to Summarily Deny Motion for Contempt and Prehearing Brief,
with Exhibits A and B via email and regular mail to:
Stafford Smith, Hearing Examiner
City of Bainbridge Island
280 Madison Ave. North
Bainbridge Island, WA 98110
Attorney for Appellants:
Dennis D. Reynolds
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island WA 98110
clt ri s[v ii?cl cl t•(a�d °.�;c�m
,1o�1�ti}sltlrfa��.c -t�li3
lawzone l l @gmail.com
dennis@ddrlaw.com
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 6t�ay of November, 2017.
Gloria J. Zak
{ JEH1643664 .DOCX,1/13023.050016/050016 } OGDEN MURPHY WALLACE, P.L.L.C.
MOTION TO DISMISS APPEAL AND PREHEARING BRIEF - 901 Fifth Avenue, suite 3500
Seattle, Washington 98164 -2008
14 Tel: 206.447.7000/Fax: 206.447.0215