2017-07-24 DECLARATION RICH MOTION TO CLARIFY1
2
kk
ul
5
0
iFA
E
0
i[+'.
11
12
13
W4
15
16
17
19
20
21
22
23
24
25
26
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,
t.
No. PLN50468 VEG
DECLARATION OF CRYSTAL RICH IN
SUPPORT OF MOTION FOR
CLARIFICATION
I, Crystal Rich, hereby declare and state as follows:
1. I am one of the Appellants to this matter. In this capacity, I am authorized to
submit this Declaration on behalf of all Appellants.
2. I have personal knowledge of the facts and circumstances set out in this
Declaration. I am over the age of 18, and am competent to testify to the matters asserted
herein.
3. The purpose of my declaration is to inform the Examiner of two matters: (a)
the City of Bainbridge Island's refusal to date to "let go" of its position the Examiner over-
turned in his March 9, 2017, Decision as to a "no touch" non - framed buffer; and (2) to show
requisite harm to our farm development and otherwise to provide justification for our request
DECLARATION OF CRYSTAL RICH IN SUPPORT
OF MOTION FOR CLARIFICATION - 1 of 17
[90373 =1]
i
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
1
2
3
A
[:
7
No
p7
10
11
12
13
14
15
16
17
M
19
NX
21
22
23
24
25
to clarify. Nether myself not my husband Yurie are asking for reconsideration or damages via
this Motion.
49 In order to move forward once the appeal was won, we set out to complete the
remaining conditions to begin work. A general summary of the needed steps is set out below.
• Verification from a consulting aborist that any retained residual forest areas
on the site will remain in windfarm condition after the clearing is done (HEX
revised Condition 13)
• Provide a copy of a class IV Forestry Practices Permit from the Department of
Natural Resources (Condition 2)
• Clearing limits fencing/netting must be installed, inspected and approved
(Condition 3)
• A pre - construction inspection must be completed (Condition 6)
• A ROW permit must be obtained for installation of the construction entrance
(Condition 9)
• The construction entrance must be installed (Condition 8)
t Evaluation & Report
5. We hired Katy Bigelow, an International Society of Arboriculture Board
Certified Master Arborist (and recognized by the City of Bainbridge) to evaluate our residual
forest. A formal report was submitted on Apri120, 2017, which states the remaining forest
will generally be in wind firm condition and gives recommendations for protecting remaining
trees during logging operations. A true and accurate copy of the Bigelow Report is annexed
hereto as Exhibit 1, by reference made part of this declaration.
Permit
6. We applied for the Forestry Practices Permit originally last October, but could
not complete sending in the official documents until after the appeal hearing. The Department
of Natural Resources ( "DNR ") cannot accept the formal permit until the City of Bainbridge
Island issues the Vegetation Management Permit. Formal complete documents were received
DECLARATION OF CRYSTAL RICH IN SUPPORT
OF MOTION FOR CLARIFICATION - 2 of 17
[90373-1]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
1
2
3
Ell
5
7
F
10
11
12
13
14
15
16
17
I=
19
20
21
22
23
WA, I
25
26
in DNR's office March 29, 2017, by certified mail. The permit was officially approved after
the required public posting period and inspection by their field officer on April 27, 2017. A
true and accurate copy of the DNR approval is annexed hereto as Exhibit 2, by reference
made part of this Declaration.
The Right of Way Permit.
7. In early April, I reviewed the application forms online to apply for the Access
Permit. I filled them out to the best of my ability, but had questions and took them into Public
Works for some guidance as several different options applied for our project. One of the
administrative assistants walked me through the forms and what was required for submission.
I went home and filled them out according to the City of Bainbridge Island's instructions.
Virginia Walker reviewed our application and let me know I had provided "more
information" than what was needed, so we removed the map and simplified the form. She
said the right of way permit mostly let the Fire Department know there would be a new
driveway going in so they could mark it for emergency services if we ever needed them. I
took the marked-up form home to redo and came back two days later.
8. We submitted (formally) for the Right of Way Access Permit on March 22,
2017. I brought in the filled -out form, with exception to checking which fee box our permit
required. City Staff confirmed they had everything they needed and explained we would
need the $250 long term usage fee to cover both construction and future driveway uses. The
person I talked to let me know turn around was pretty quick — typically less than 10 days —
because the permit was basically just to provide notice that a new driveway was going in. I
asked her to please call me if there were any questions or missing information.
DECLARATION OF CRYSTAL RICH IN SUPPORT
OF MOTION FOR CLARIFICATION - 3 of 17
[90373 =1]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
1
2
3
all
5
N
VA
0
irij
W
HKA
13
14
15
ip
17
im
20
21
22
23
24
25
gel
9. We did not hear anything, so on April 13, 2017, I stopped in to ask what the
status of our permit was. Virginia said she had not seen anything yet and then went to look on
Jonathan Baas' desk to see if it had been processed. She came back to say it was on his desk,
but Staff had "concerns." Specifically, Virginia said she did not think we had access to our
property because the roadway was private. I let her know there were no easements for our
driveway to cross — our driveway would be coming off a public road. I asked if I could speak
to the person or persons who had the concerns and she said they were unavailable. I again
reassured her and offered to pull out the map indicating where the driveway was and show her
it came off a public road.
106 She then changed her story and said there were stormwater issues expressed by
Staff — that our driveway may have impacts to stormwater. I then let her know that a
stormwater engineering report had been submitted with our vegetation management permit
and had been approved by Janelle Hitch, the City's engineer. She said she thought Janelle
had voiced a concern the driveway would have no stormwater impacts. I let her know the
stormwater infrastructure being developed was not in proximity to the driveway and the
driveway would have no impact on stormwater. After all, the stormwater engineering report
had been accepted and approved by the City Engineer. She said there were still some
"concerns" about that, so I asked if I could talk to someone about those concerns. She said
they were not available, but the concerns would have to be addressed before the permit was
issued. I then mentioned we had won the appeal with the hearing examiner to move forward
and our vegetation management permit had been approved. I also mentioned the Access
Permit was not dependent upon the Vegetation Management Permit and asked why were we
being held up to install access to our property.
DECLARATION OF CRYSTAL RICH IN SUPPORT
OF MOTION FOR CLARIFICATION - 4 of 17
[90373 -1]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780-6777
(206) 780-6865 (Facsimile)
1
K
3
TA
5
0
7
No
0
10
11
12
13
M
15
16
17
Me
19
20
21
22
23
24
25
26
110 Virginia said she would need to talk with Christy Carr. (Each time she went to
go talk to staff, she was gone for 20 -30 minutes, so presumably our Farm Project was being
discussing in depth). Virginia said Christy would come out to talk with me. Christy came out
with an email she had sent March 28, 2017, in answer to my email dated March 22, 2017.
True and accurate copies of these two emails are annexed hereto as Exhibits 3, by reference
made part of this Declaration. Christy's email said we would need to revise our approved
stormwater engineered plan because we did not have our attorney "appeal that condition." I
responded (both in an earlier email and during this discussion) that the condition was struck
down by the hearing examiner because the nonfarm buffer was not a no -touch zone.
129 On the last point, in our appeal, we demonstrated the nonfarm buffer could be
used for various needs, including stormwater — just not farming. Also, the part of the
bioretention/raingarden that encroached on the buffer included the emergency overflow that is
required to tap into existing stormwater ditching. This met the Code. I asked her how she
expected us to have an emergency outflow if it could not cross the buffer. She said it would
need to be revised to meet Condition 11 of our permit. I asked her specifically what would
need revision. She said she could not tell me and did not have time to look at it. I asked her
when she would be able to tell me. I said we had complied with all of the City's
requirements, and this felt like obstructing our access to our property. She said we had not
met the Condition and our lawyer should have appealed it. I asked again if she could show
me what required change. She said she did not have time now, but perhaps next week she
could take a look at it. I mentioned that I would have to contact our attorney because it felt
like the permits were being purposely held up. She said to go ahead and do that, but for now,
we could not move forward.
DECLARATION OF CRYSTAL RICH IN SUPPORT
OF MOTION FOR CLARIFICATION - 5 of 17
[90373-1]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780-6865 (Facsimile)
1
K,
9
5
N
iFA
�j
irk
11
iYA
13
14
15
16
17
:
19
20
21
22
23
,1
25
139 Thereafter, Christy did send an email over three weeks later with highlighted
areas needing change. See Exhibit 3, infra. (The areas she indicated are emergency bio -swale
additions we put at low spots to prevent any flood level events should the existing vegetation
not be able to handle rainwater from flooding the neighboring properties. It also addresses
any road runoff should our driveway not be able to handle flood level rains.) I asked her via
email to point out where the plan is in conflict with the Code and have not had a response.
14. The Right of Way Access Permit is not related or connected to Vegetation
Management — it is simply a permit designed to allow a property owner to get onto their
property. I felt this was just one other way the City Staff used delay tactics to prevent us from
moving forward. The discussion about whether stormwater impacted the Access Permit cost
us over a month of delay in installing the construction entrance. On April 25, 2017, the
Public Works Department notified us that the access permit has been approved. Because
there was some confusion from Jonathan Baas about the exact location of the driveway, we
held a preconstruction meeting in early May to walk the entire length of Quail Hill Road, talk
about if culverts were needed (he determined they were not due to a variety of conditions),
document existing condition of the roadway, etc. Jonathan provided some input and agreed
with our plan of a "Y" shaped entrance rather than a 90- degree entrance would be more
beneficial for firetrucks and long -term maintenance.
15. We were finally able to start work on installing the construction entrance,
which will eventually become our permanent driveway access. During this time, we also
worked on marking our clearing limits so that the inspections could happen at the same time.
Public Works is indicated on the online portal as the inspecting department, so we had
planned on having both the access permit and the clearing limits inspections at the same time
DECLARATION OF CRYSTAL RICH IN SUPPORT
OF MOTION FOR CLARIFICATION - 6 of 17
[90373 -1]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
1
2
3
7
10
11
12
13
14
15
16
17
ig
19
20
21
22
23
24
25
26
to save time for staff and an extra trip to the property. When we completed the work, we
requested the two inspections for our final checkoff to be able to move forward with logging.
Clearing Approval
16. In order to define the area of tree removal versus non -tree removal, fencing
must be installed. I asked both at Public Works and the Planning Department when we
applied for the Access Permit if a standard was found in the Code for how the fencing should
be installed, how frequently flagging needed to be, etcetera. None of the staff could find any
specific guidelines. I was told to just "clearly mark" the boundaries. Feeling the need to have
something more official, I asked both Katy Bigelow and Meredith Dessen, our Department of
Natural Resources Forestry Practices Inspector, for guidance. They both sent me photos of
what they have seen as acceptable forms of delineation for the clearing boundary. Using their
photos as a guide, we strung a wire fence around the entire perimeter of the property utilizing
flagging tape at about five -foot intervals. We wanted the boundary to be as visible as
possible. We also used orange netting along Virginia Rusch's property (our northwest corner)
for added safety as her driveway actually crosses into our property. We also marked the
residual forest areas to prevent any confusion about what was to remain standing.
17. Once both the construction entrance and clearing boundaries were installed, we
asked for an inspection with Jonathan Baas on June 6, 2017. Jonathan came out and inspected
the entrance. He approved the work and said he would recommend putting geotec fabric
down before the permanent driveway installation, but the grading looked great. He then let
me know he was specifically directed by Planning to not inspect the clearing limits. He said
the Department's position is that the stormwater features are in the wrong location to move
forward. I let him know the City Engineer previously approved the system and its location.
DECLARATION OF CRYSTAL RICH IN SUPPORT
OF MOTION FOR CLARIFICATION - 7 of 17
[90373 -1]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780-6865 (Facsimile)
1
K,
3
a]
5
0
7
0
10
11
12
13
14
15
16
17
Me
19
20
21
22
23
W
25
26
He said what we were talking about was "above his pay grade ", and there was not anything he
could do to help, other than mention the construction entrance was approved to the Planning
Department. It is important to note the construction access permit is only good until
September 1, 20170 If the City continues to delay, we will have to reapply to maintain the
entrance we have before it can be converted to the permanent driveway access.
189 Clearing the land is not tied into the stormwater system, which is constructed
later in the development process. Details of that are set out below. Even though we contest
the City's position on moving the stormwater features, the inspection could have taken place
and any issues could have been worked out while work is underway to clear the property. We
offered several times to arbitrate this while work could move forward.
of
190 Condition No. 11 of the City's Administrative Decision provides 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."
The City insists that Condition No. 11 prohibits the location of the stormwater system within
what it calls "the 25 400t non -farmed buffer.
20. On November 21, 2016, The City approved our drainage plan and S WPPP as
written, which included drainage features (including bioretenti
w on cell and grass lined swales)
in the nonfarmed buffer.
216 Directly, and through counsel, I have communicated to the City that Condition
No. 11 was rendered invalid by the Hearing Examiner's decision with respect to Condition
No. 7. I have also met with City Manager Doug Schultz to explain the difficulty we have had
DECLARATION OF CRYSTAL RICH IN SUPPORT
OF MOTION FOR CLARIFICATION - 8 of 17
[90373 -11
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
1
2
M
9
D
7
E
10
11
12
13
14
15
16
17
W
19
20
21
22
W
24
25
W
moving our project forward and the fact that the stormwater infrastructure did not need to be
moved. I have asked for code clarification or even a general reason as to why the facility
would need to be moved. All my requests have been met with a blanket statement that "it is
the City's position it needs to be moved."
22. The City's response to my numerous pleas and assertions concerning Project
Condition No. 11 is to dogmatically cling to one paragraph in the Hearing Examiner's
decision, that states.
"The Riche's conjoined vegetation management permit appeal
is GRANTED as to project conditions nos. 7, 12 and 13. All
other MDNS and project conditions stated in the City's
combined administrative vegetation management permit
decision and SEPA Mitigated Determination of
Nonsignificance (MDNS) issued December 22, 2016, are
affirmed."
(HEX Decision page 15).
To me, the quoted language is in the context of striking down Condition Nos., 7, 12 and 13.
The City ignores the remainder of the Hearing Examiner's analysis rejecting the City's
attempt to enforce a no -touch buffer., apparently reading the quoted language addressing
Condition No. 11 as not "subject to" the other rulings. The City's position completely ignores
item 3.2 in our appeal that states we appeal all conditions relating to the directly named
conditions — meaning that the use of the nonfarm buffer is no touch — which it is not, and
verified by the Hearing Examiner in our appeal.
23. In a June 13, 2017, letter from the City's outside counsel, Mr. Jim Haney, he
asserts that: (a) we did not appeal Project Condition No. 11 and the Hearing Examiner granted
the appeal with respect to Project Conditions Nos. 7, 12, and 13, but affirmed "all other
MDNS and project conditions... "; and (b) Project Condition No. 11 is justified as a mitigation
DECLARATION OF CRYSTAL RICH IN SUPPORT
OF MOTION FOR CLARIFICATION - 9 of 17
[90373-1]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780-6865 (Facsimile)
1
pul
K
0
0
7
J
10
11
12
13
14
15
16
17
ip
19
20
21
22
23
24
25
26
measure under BIMC 16.22.050.0 to "reduce adverse impacts on surrounding properties."
Mr. Haney also voiced concerns that the farm runoff would "contaminate" the bioswale or be
a "nuisance" to neighboring properties. A true and accurate copy of this letter is annexed
hereto as Exhibit 4, by reference made part of this Declaration.
24. On the last point relating to runoff, Section II.E. of the City's Staff Report
dated December 20, 2016 ( "Staff Report"), addresses which Project Conditions the City
considered necessary for stormwater 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 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." (emphasis in original).
259 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).
26. Based upon the Staff Report, Project 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. Yet, Mr. Haney offers the following support for the City's position that
Condition No. 11 is a mitigation measure,
DECLARATION OF CRYSTAL RICH IN SUPPORT
OF MOTION FOR CLARIFICATION - 10 of 17
[90373=11
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
1
2
3
Ell
5
Co
VA
No
0
10
11
W
13
14
15
16
17
W
ig
KXJ
21
22
23
24
25
(a) "The Riches prop(
runoff that is over
require significant
mowing, weeding
use to create a bioretention cell for farm
600 square feet in size and that will
ongoing maintenance in the form of
and pest control. "; and
(b) "This bioretention cell and its maintenance will have visual
impacts, as well as impacts from odors, noise, and spraying
that will be part of the farming and maintenance activities."
27. "Mowing, weeding and pest control" are not unique farming operations. These
activities are inherent in every residential use. To assert that these uses of land are unique to
farm operations is completely absurd. Furthermore, "Bioretention systems rely on vegetation
(i.e. grasses, shrubs, and sometimes trees) to intercept, uptake and evapotranspire stormwater.
These techniques work best when vegetation is allowed to mature with minimal to no
mowing. Spraying will not be used on an organic farm, and pest control is minimal —
potentially only including dunks for mosquitos. Plant roots improve soil structure and
increase infiltration capacity." (Bioretention Operation and Maintenance Guidance Document,
Western Washington Low Impact Development (LID) Operation & Maintenance (O &M)
Manual, July 8, 2013, page 16). A Bioretention Cell has less maintenance than a lawn. The
noises, odors and noises associated with mowing, weeding and spraying are the same noises
and odors associated with the same activities on a residential property, and in fact, work better
when mostly left alone to do their work of natural filtration and aquifer recharge.
28. In my opinion, City Staff is continually reaching for opportunities to prevent
us from clearing our land. Our Farm Plan (written with the Kitsap County Conservation
District and approved by the City) includes practices known as "Use Exclusion, Heavy Use
Area Protection, Catch/Cover Crop, Waste Storage Facilities, Roof Runoff Management,
Underground Outlets, Water Harvesting Catchment, Nutrient Management, Livestock
DECLARATION OF CRYSTAL RICH IN SUPPORT
OF MOTION FOR CLARIFICATION - 11 of 17
[90373 -1I
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
fl
E
K
2
5
Co
7
0
M
11
12
13
14
15
16
`Vi
19
20
21
22
23
25
26
Fencing, Pasture, and Hayland Planting." There are also prescribed Grazing, Irrigation Water
Management, restrictions on hoofed animals in drain fields and saturated soils pursuant to
Bremerton - Kitsap Health District ordinances, and confinement of livestock to barns during
the wet season and during establishment of roots in pasturelands. These restrictions and
requirements ameliorate — if not outright eliminate — any concerns with possible "run- off."
The whole point of them is to prevent run -off. We also do not have large hooved animals in
our farm plan, which means manure production is quite minimal, and easily dispersed through
regular free -range pasture practices. The idea that large herds has never entered out project,
and is a stretch — at best — in manure contamination concerns.
29. Our Farm Plan, approved from the City, was prepared for the us by the Kitsap
Conservation District and one of its primary goals, if not the primary goal, is to create an
environmentally sustainable plan that reduces the environmental impacts of farming
operations, including stormwater runoff. The Farm Plan does not rely on the rain garden in
the nonfarmed buffer to properly manage the pasture areas and the runoff from the farm
operations will be very similar to a lawn. In addition, Quail Hill Road lies between our
property and the downhill properties, thereby acting as a barrier, although no runoff is
expected. Every consideration has been taken into account to minimize any impacts to our
neighbors.
30. In the hope to move forward, we followed the City's request to hire a second
Stormwater Engineer to review our approved plan provided by Seabold Engineering. Adam
Wheeler of Browne Wheeler Engineers, Inc. evaluated the existing plan, reviewed the geotec
data provided by Envirosound Consulting and reviewed our farm plan. He determined the
system was in the most advantageous topographical position, was sized correctly, and would
DECLARATION OF CRYSTAL RICH IN SUPPORT
OF MOTION FOR CLARIFICATION - 12 of 17
[90373 -1]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780-6777
(206) 780 -6865 (Facsimile)
1
RIA
3
5
CO
7
No
�9
10
11
12
13
14
15
16
17
Wel
19
F�;
21
22
P X4
24
25
26
not create a nuisance for neighboring properties. As written, the already approved plan met
code and followed best practices. Please see his memorandum dated July 6, 2017, detailing
his evaluation annexed hereto as Exhibit 5, by reference made part of this Declaration.
31. On July 12, 2017, the Wheeler Memorandum was submitted to City Engineer
Janelle Hitch and Dave Erbes of the Building Department. Ms. Hitch notified the Building
Department that the Stormwater plan did not meet the revised conditions changed in January
for our building permit application. As mentioned earlier, the Stormwater Plan was approved
in November 2016, before code changes. Regardless, the plan does address the homesite
impervious surface and the method of dispersion into lawns and pastures for adequate
stormwater management. This was, yet again, one more roadblock of using the stormwater
plan to hold up moving our required permits through the City's review.
32. On July 17 and 18, 2017, Ms. Hitch replied with the City's "party- line"
position that the located could not be approved and the facility must be moved out of the
buffer. True and accurate copies of Ms. Hitch's emails are annexed hereto as Exhibit 6, by
reference made part of this Declaration.
339 I requested a code reference requiring the stormwater features, and have re-
reviewed Chapter 15.20 several times. I also asked if there was a "mitigation reason" for
COBI's position. I have not received a response.
34. We have tried appealing to higher level staff in the hopes reason will prevail.
We feel the City is holding up an impenetrable wall to prevent us moving forward. If we
work without the inspection, there are multiple civil penalties. However, if the City does not
comply with the Examiner's Order, we have no other recourse than to pursue legal means.
Either way, the City is continually costing us time and money with their delays.
DECLARATION OF CRYSTAL RICH IN SUPPORT
OF MOTION FOR CLARIFICATION - 13 of 17
[903734 ]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
1
2
3
Ell
5
D
7
me
0
10
11
12
13
14
15
16
17
Wo
19
20
21
22
23
FU
25
26
359 Once the appeal was over and the required DNR Forestry Practices Permit was
secured, our logger, Jerry Shelly, put the project on his working schedule. We anticipated
with the decision at the end of March and the DNR approval in April, and the time for the
City to inspect the clearing limits, etc. Mr. Shelly would be ready to move forward with
logging by the end of May, or the first part of June. With the Road Access Permit approved,
Mr. Shelly cut the trees in the driveway access area. Aaron Crane from Tilz came out to
remove the brush, grade and install the large rock needed for the equipment to drive over.
36. Mr. Shelly is a very successful small -scale logger — perfect for our size
project. Because he runs a small operation, his schedule is somewhat flexible, but he takes on
jobs many months in advance to make sure he has a steady stream of income. After our trees
are felled, he has another project which would take him through January of 2018. Mr. Shelly
has held off on starting his other project because once his equipment is moved to the next job
site, it will be very expensive and cumbersome to move it again due to the distance from our
land and the remoteness of his next job. Mr. Shelly has held off as long as he can and is now
in jeopardy of not being able to start our clearing until after the next project he has slated.
This would push our project out months, into the winter. In addition, the proceeds to pay Mr.
Crane for his grading work, etc. were directly attributed to the proceeds from the logging on
our land. This was not inexpensive and he has not been able to recover any of the costs
through timber sales, in addition to the work delay due to the lack of inspection by the City
for our clearing limits.
37. Also, our final perc test has not been able to be scheduled due to the logging
not being completed, nor has our well been able to be drilled. A Washington Supreme Court
Ruling, called the "Hirst Decision ", arising in Whatcom County, has put in doubt the ability
DECLARATION OF CRYSTAL RICH IN SUPPORT
OF MOTION FOR CLARIFICATION - 14 of 17
[90373 -1]
DENNIs D. REYNOLDs LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
1
2
�K
0
5
C:
J
7
E
10
11
12
13
1,11
15
16
17
W*
19
20
21
22
23
25
26
to drill a private well. That Decision is still up for debate before the Washington State
Legislature. That is, whether a law will be passed allowing the drilling and use of new wells.
It is vital we provide water to our property before the ability to do so may no longer be
available because Kitsap County could apply the Hirsh Decision. Banks will not finance
properties that cannot provide water to residences — there is no City Water in our area and a
well is essential. We cannot install the temporary power until the logging complete, which is
essential for home construction and well drilling to take place. Lastly, our General Contractor
Troy Olsen of TNT Homes, scheduled construction to start in July. He only builds one to two
homes at a time. Material costs such as lumber have gone up over twenty five percent since
March, making the cost of building our farm that much more expensive.
A This domino effect of the City's behavior is jeopardizing not only our family's
ability to build during the favorable weather, it is also delaying our contractor's ability to
work and the very viability of our farm. The chance that Mr. Sherry can still "squeeze in" our
project is quickly disappearing. The time for major earthwork will have unfavorable
consequences during the wet season. The cost of materials is continuing to rise. The
expiration of approved permits (DNR, DOE, Road Access, and possibly Vegetation
Management) is quickly approaching. By holding the clearing limit inspection over our head,
the cost of time and money is exponential and an unnecessary burden to our family to use our
own land as allowed by law. It is blatant obstruction and vindictive after the appeal was won
rather than based upon anything in our municipal code.
A In my opinion, our appeal was clear — farming has the ability to manage land
by using the non -farm buffer to help protect neighboring properties, provide pollinator spaces,
provide screening if necessary, etc. It appears the City Staff is disregarding the 18-page
DECLARATION OF CRYSTAL RICH IN SUPPORT
OF MOTION FOR CLARIFICATION - 15 of 17
[90373 -1]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
document comprising the Examiner's Decision in our matter in support of its position of the
appeal, which was not sustained. We feel we have no other option than to ask the Hearing
Examiner to clarify the position and help us remove any and all future roadblocks set out by
the City Staff for preventing us from using our private property.
I declare under penalty of perjury under the laws of the State of Washington that the
foregoing is true and correct to the best of my knowledge and belief.
EXECUTED this 24di day of July, 2017 at Bainbridge Island, Washington.
Zlllt---
CRYSTAL RICH
DECLARATION OF CRYSTAL RICH IN SUPPORT
OF MOTION FOR CLARIFICATION - 16 of 17
[90373.11
DENNis D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
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:
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
a -Email
(206) 447 -7000, tel / (206) 447 -0215, fax
jhaney(n omw.law.com; mfrazergomwlaw.com;
gzak(t�,omwlaw.com
Attorne s or City o Bainbrid e 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
d'
Email
City o Bainbrid e Island Sta Attorney
DATED at Bainbridge Island, Washington, this 2n�– day of July, 2017.
j—&"-
Jodf3renner
Paralegal
DECLARATION OF CRYSTAL RICH IN SUPPORT
OF MOTION FOR CLARIFICATION - 17 of 17
[90373 -11
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
Rich — Declaration
Exhibit 1
Katy Bigelow
206.35101375
arboristkaty@gmall.com
April 17, 2017
Crystal Rich
Quail Hill Rd NE
Tax Parcel: 222502 -3 -013 -2008
Bainbridge Island, WA 98110
Re: Trees in the landscape buffers along Sands Ave NE and the northwest corner of the
parcel
Dear Mrs. Rich:
Thank you for having me assess trees in two landscape buffers on your property. I completed
my assessment on April 14, 2017.
To assess the trees addressed in this letter I combined my field experience and education with
current accepted practices as defined by the American National Standards Institute (ANSI) and
the International Society of Arboriculture (ISA).
The tools I use to make an assessment are limited to a rubber mallet, binoculars, compass, laser
pointer and hand trowel unless otherwise noted. A visual tree assessment and other methods are
only conclusive for the day of inspection and do not guarantee that conditions will remain the
same in the future.
The Rich's property has two designated landscape buffers. View the Site Map to see their
approximate locations. I was specifically asked to determine if trees growing in these buffers
would remain "windfirm" after clearing activity had exposed both buffers to new weather and
wind conditions.
Except for the southwest corner of the property (Photo 1), trees growing in the two buffers grow
few and far between Photo 2 . Species included Western red cedar, Douglas -fir, Pacific
madrone and Schouler's willow.
Only one mature tree (one Douglas -fir) grows in the western landscape buffer. It has one
buttress root extending to the west into the ditch along Sands Ave NE. It is in fair condition with
slightly thinner overall foliage than average. It is the tallest tree in this buffer and in the
immediate area.
Tree assessment — Rich
Tax Parcel: 222502 -3-013 -2008
Quail Hill Road, BI
4/17/17
This fir is the only tree that has the potential to be significantly affected by clearing and grading
activities in the western landscape buffer. While clearing and grading, closely monitor the area
east of the tree for roots growing into the project area. Cleanly cut any roots over one inch
diameter to the buffer line if encountered. Monitor the trees condition over time.
Trees growing in the northwest landscape buffer are a mix of ornamental and young native trees
(Photos 3 & 4). All are in fair to good condition. The buffer delineation may extend under the
drip line for these trees but the Rich's intend to retain them for privacy screening.
Before clearing and grading occurs, install tree protection fencing at the clearing limits for the
buffers, allowing more room if possible to protect the single fir in the western landscape buffer
and trees along the northwest buffer at their drip lines. Please refer to the general tree protection
specifications attachment for more information on this process.
If tree protection is erected and is maintained through the clearing and grading process, and roots
extending into the project area are cleanly cut if encountered, it is my professional opinion that
trees growing in the buffers will remain windfirm and in good condition after the project is
complete.
Thank you very much for calling me for your arboricultural concerns.
Katy Bigelow
Board Master Certified Arborist
PNW ISA member # PN -6039A
Tree Risk Assessment Qualified
Registered Consulting Arborist® # 490
Prepared by Katy Bigelow Page 2 of 9
Tree assessment— Rich
Tax Parcel: 222502 -3- 013 -2009
Quail Hill Road, BI
4/17/17
Site Map
�aY w
> O m E
m m z z
u ° G
a N $ m y
N $m a E z _
O
G m o o z a Av a
O pNn 2 n F m >> O Cr
V
Red circles = approximate locations of trees I assessed.
Prepared by Katy Bigelow Page 3 of 9
!I1,1
Red circles = approximate locations of trees I assessed.
Prepared by Katy Bigelow Page 3 of 9
Tree assessment— Rich
Tax Parcel: 222502 -3 -013 -2008
Quail Hill Road, BI
4/17/17
Photos
Photo 1: Looking north along Sands Ave NE at the intersection of Sands Ave NE and Quail Hill
Rd., showing the boundary stake for the landscape buffer. Red line shows approximate buffer
zone.
Prepared by Katy Bigelow Page 4 of 9
Tree assessment — Rich
Tax Parcel: 222502 -3 -013 -2008
Quail Hill Road, BI
4/17/17
Photo 2: View south along Sands from the northwest property comer.
Prepared by Katy Bigelow Page 5 of 9
Tree assessment — Rich
Tax Parcel: 222502 -3 -013 -2008
Quail Hill Read, BI
4/17/17
Photo 3: Trees along the northwest buffer. Red line shows approximate buffer zone.
Prepared by Katy Bigelow Page 6 of 9
Tree assessment — Rich
Tax Parcel: 222502 -3- 013 -2008
Quail Hill Road, BI
4/17/17
Hria'4;+�y.
Photo 4: two of the few trees growing in the NW landscape buffer area.
Prepared by Katy Bigelow Page 7 of
L�l
0
O.
Cro
a;
W
Uo'
(D
1 . 1 -.1 I •. r'
l
F
I ,:
, • MIS.• � I � 4
2o If there Is no existing Irrigation,
specUtcallons I . requirements.
No prunbV shag be performed except
by approved .•. K
MEMO
protective r Including
InstaUtion and removaL
S site preparation p . any
modilicalloris with the . 1 1
.1
Tree •
Protection
fence: . density
polyreftyftne
Vdth &W x low
zoo •pL 1 . • I
orange. posts
.:
posts installed at Er o.c.
20 x F steel
or aWoved equal.
S' thick
layer of mulch.
JI I 1 I
14r:11 1 kt I : 1
I I I' .1 • 1
1 . h
�11 �
�Et p "3
C co
y
N
. `Ib
W n
A
w
N
A
A
Tree assessment — Rich
Tax Parcel: 222502 -M 13 -2008
Quail Hill Road, BI
4/17/17
Assumptions, Limiting Conditions and General Waiver
I, Katy Bigelow, certify that.
I have personally inspected the tree(s) and or the property referred to in this report,
I have no current or prospective financial or other interest in the vegetation or the property which
is the subject of this report and have no personal is or bias in favor of or against any of the
involved parties or their respective position(s), if any,
The analysis, opinions and conclusions stated herein are the product of my independent
professional judgment and based on current scientific procedures and facts, and the foregoing
report was prepared according to commercially reasonable and generally accepted arboricultural
standards and practices for the Pacific Northwest and Puget Sound areas;
The information included in this report covers only those trees that were examined and reflects
the condition of the trees as of the time and date of inspection;
This report and the opinions expressed herein are not intended, nor should they be construed, as
any type of warranty or guarantee regarding the condition of the subject trees in the future;
Covenants, Conditions, and Restrictions ( "CC &Rs ") may restrict the number, type and height of
vegetation on the subject property, and I have made no investigation regarding whether the
property is subject to such CC &Rs; and
To the best of my knowledge and belief, all statements and information in this report are true and
correct and information provided by others is assumed to be true and correct.
I am not an attorney or engineer. This report does not cover these areas of expertise and
represents advice only of arboricultural nature. Without limiting the generality of the preceding
sentence, it is specifically understood that nothing contained in this report is intended as legal
advice, or advice or opinions regarding soil stability or zoning laws, and this report should not be
relied upon to take the place of such advice.
7
Katy Bigelow
Board Master Certified Arborist
PNW ISA member # PN -6039A
Tree Risk Assessment Qualified
Registered Consulting Arborist® # 490
Prepared by Katy Bigelow Page 9 of
Rich — Declaration
Exhibit 2
�FtNI P�H
WASHINGTON STATE DEPARTMENT OF
7 nATURAL RESOURCES
s
are
Forest Practices Application /Notification
Notice of Decision
FPA/N No
Effective Date
Expiration Date
Shut Down Zone
EARR Tax Credit
Reference:
2419272
4/27/2017
4/27/2020
654
❑ Eligible ❑ Non - eligible
22- 25 -02E
Decision
• Notification Operations shall not begin before the effective date.
• Approved This Forest Practices Application is subject to the conditions listed below.
❑ Disapproved This Forest Practices Application is disapproved for the reasons listed below.
❑ Closed Applicant has withdrawn approved FPA/N
FPA /N Classification Number of Years Granted on Multi -Year Request
❑ Class II ❑ Class III ® Class IVG ❑ Class IVS ❑ 4 yrs ❑ 5 yrs
Conditions on Approval / Reasons for Disapproval
Issued By: Aileen Nichols Region: South Puget Sound
Title: Resource Protection Forester Date: 4/27/2017
Copies to: IS Landowner, Timber Owner and Operator.
Issued in
person: ❑ Landowner OTimber Owner ❑ Operator By:
Washington State Department of Natural Resources - Notice of Decision • July 10, 2012 Page 1 of 2
You have thirty (30) days to appeal this Decision and any related State Environmental Policy Act determinations to
the Pollution Control Hearings Board in writing at the following addresses:
Physical address: 1111 Israel Rd. SW, Ste 301, Tumwater, WA 98501
Mailing address: P.O. BOX 40903, OLYMPIA, WA 98504-0903
Information regarding the Pollution Control Hearings Board can be found at: http: //www.eho.wa.cov/
At the same time you file an appeal with the Pollution Control Hearings Board, also send a copy of the appeal to the
Department of Natural Resources' region office and the Office of the Attorney General at the following addresses:
Office of the Attorney General Department Of Natural Resources
Natural Resources Division South Puget Sound Region
1125 Washington Street SE And 950 Farman Ave. N
PO Box 40100 Enumclaw, WA 98022
Olympia, WA 98504 -0100
Other Applicable Laws
Operating as described in this application /notification does not ensure compliance with the Endangered Species
Act, or other federal, state, or local laws.
The Department of Fish and Wildlife (WDFW), as the jurisdictional agency issuing HPAs, has final authority for
approving water crossing structures in Type S and F waters. WDFW continues to have authority on Type N waters
and may exercise that authority on some Type N waters.
Notice: The HPA water crossing requirements supersede what is indicated on the FPA. Landowners are
required by law to follow the provisions as directed on the HPA.
Use the "Notice of Transfer of Approved Forest Practices Application /Notification" form. This form is available at
region offices and on the Forest Practices website: htto: /ffile.dnr.wa.gov /publications /fp form foantransfer.pdf.
Notify DNR of new Operators within 48 hours.
Obligations include reforestation, road maintenance and abandonment plans, conversions of forest land to non -
forestry use and /or harvest strategies on perennial non -fish habitat (Type Np) waters in Eastern Washington.
Before the sale or transfer of land or perpetual timber rights subject to continuing forest land obligations, the seller
must notify the buyer of such an obligation on a form titled "Notice of Continuing Forest Land Obligation ". The seller
and buyer must both sign the "Notice of Continuing Forest Land Obligation" form and send it to the DNR Region
Office for retention. This form is available at DNR region offices.
If the seller fails to notify the buyer about the continuing forest land obligation, the seller must pay the buyer's costs
related to continuing forest land obligations, including all legal costs and reasonable attorneys' fees incurred by the
buyer in enforcing the continuing forest land obligation against the seller.
Failure by the seller to send the required notice to the DNR at the time of sale will be prima facie evidence in an
action by the buyer against the seller for costs related to the continuing forest land obligation prior to sale.
DNR affidavit of mailing:
On this day 4/27/2017 , I placed in the United States mail at Enumclaw , WA,
(date mm /dd /yyyy) (post office location)
postage paid, a true and accurate copy of this document. Notice of Decision FPA #2419272
Meredith Dessens
(Printed name)
(Signature)
Washington Stale Department of Natural Resources • Notice of Decision • July 10, 2012 Page 2 of 2
Rich — Declaration
Exhibit 3
From: Christy Carr <ccarr @bainbridgewa.gov>
Sent: Thursday, April 20, 2017 2:09 PM
To: Crystal Rich
Subject: RE: Next Steps
Crystal,
Your ROW permit is ready to be issued and you can pick it up anytime.
Revisiting next steps, below, please note the following items are needed before start of clearing activities:
• Provide a copy of a Class IV FPA permit (Condition 2)
• Clearing limits fencing/netting must be installed, inspected and approved (Condition 3)(If you are clearing to the
property line, then the clearing limits fencing /netting must be installed along the property lines.)
• A pre- construction inspection must be completed by the City's Development Engineer (Condition 6)
• A ROW permit must be obtained for installation of the construction entrance (Condition 9)
• The construction entrance must be installed (Condition 8)
• A revised drainage plan meeting the requirements of Condition 11 must be submitted for review and approval
• Verification from a consulting arborist that any retained residual forest areas on the site will remain in windfirm
condition after clearing is done (HEX revised Condition 13).
Thank you for submitting the arborist report. I have not had the chance to review it yet, but if I have any questions, I will
let you know.
I consulted with the City Attorney and Planning Director regarding Condition 11, both of whom concur with my previous
comment: The Hearing Examiner's decision did not revise Condition 11. The decision states that, with the exception of
the revisions to Condition 1, 12 and 13, all other conditions of the City's administrative decision and MDNS are affirmed.
As such, review and approval of a revised drainage plan Is required to document compliance with Condition 11.
Thanks.
christy
From: Christy Carr
Sent: Tuesday, March 28, 2017 1:18 PM
To:'Crystal Rich' <richclan @native6.com>
Subject: FW: Next Steps
Crystal,
Please see my comments in red, below.
Thanks.
christy
From: Crystal Rich Imailto :richclan @native6.coml
Sent: Wednesday, March 22, 2017 8:26 PM
To: Christy Carr <ccarr@bainbridsewa.Rov>
Subject: RE: Next Steps
Christy,
Thanks for the list. I've stopped in a couple of times to ask questions about proceeding to make sure everything is in
order. I spoke with Jay last week about the clearing signs, because I thought we'd be required to post notice before
starting. He said they weren't required since ours is a vegetation management permit and not a clearing permit. Can
you confirm that? If we need to post signs, I can swing back by and pick them up. Logging of course, won't be scheduled
until we have the green light to move forward, and I was concerned there was a notice time requirement before starting
work.
The DNR permit is in process. We didn't apply for it until the hearing was over as they needed the vegetation
management approval with the clearing limits before they could proceed. They are expecting a 15 day turnaround.
I spoke with Jay today a bit about the clearing limits and the fencing /netting. I asked if we could stake out the back
borders (north & west sides) with marking/flagging. We've had the property surveyed and have a line of sight marked
between survey points. Since the property is one quarter mile long and through dense vegetation, hiking the
netting /fencing in will be very difficult. The stakes could be at 20 foot intervals to clearly mark the borders and we could
flag the trees inside and outside the cut line with different colored tape if this would be sufficient for the requirement. I
spoke with our logger and he said this is quite common for large parcels surrounded by forested land. Would this meet
the requirement for the purpose of marking the clearing activity borders? As soon as it is marked, I'll be happy to give
notice for the inspection. Jay thought you were the one to inspect it, but you have the DE listed below. Can you let me
know if there is flexibility in this? Our preference would be for you to inspect if we have a choice as I have concerns
there will be retaliation after the hearing with Janelle.
The condition reads "fencing /netting," and the City cannot offer flexibility on this requirement. Having the clearing limits
clearly marked in the field is important from a resource protection perspective and to minimize potential for inadvertent
clearing on abutting properties. It is likely that I will inspect the clearing limits; however, Janelle will be on site several
times for other required inspections.
ROW permit has been applied for as well as a long term access permit. Public Works indicated it is about a 10 day
process. Once approved, the logger will install the construction entrance where the future driveway will be to limit the
impact of the property approach.
In terms of the bioretention cell and its location — because it is a nofarm based activity, and the hearing examiner stated
the nonfarm buffer does not require it to retain native vegetation, it is a compatible use with the definition of nonfarm
buffer land management outlined in his interpretation. As stated, it was conditional on the requirement of maintaining
a native vegetation buffer, which was struck down.
The Hearing Examiner's decision did not revise Condition 11. The decision states that, with the exception of the
revisions to Condition 1, 12 and 13, all other conditions of the City's administrative decision and MDNS are affirmed. As
such, review and approval of a revised drainage plan is required to document compliance with Condition 11.
The arborist will be out soon to verify windfirm condition any remaining trees. The report should be in sometime close
to when the DNR permit is approved.
Thanks for the outline. We are pretty excited to move forward.
Crystal
From: Christy Carr [mailto:ccarr @bainbrideewa.eovl
Sent: Wednesday, March 22, 201710:26 AM
To: Crystal Rich <richclan @native6.com>
Subject: Next Steps
Crystal,
I wanted to provide you with a list of items that need to be addressed prior to start of any clearing activity:
• Provide a copy of a Class IV FPA permit (Condition 2)
• Clearing limits fencing/netting must be installed, inspected and approved (Condition 3)(If you are clearing to the
property line, then the clearing limits fencing /netting must be installed along the property lines.)
• A pre- construction inspection must be completed by the City's Development Engineer (Condition 6)
• A ROW permit must be obtained for installation of the construction entrance (Condition 9)
• The construction entrance must be installed (Condition 8)
• A revised drainage plan meeting the requirements of Condition 11 must be submitted for review and approval
• Verification from a consulting arborist that any retained residual forest areas on the site will remain in windfirm
condition after clearing is done (HEX revised Condition 13).
Please let me know if you have any questions.
Thanks.
christy
CITY OF
BAIN BRI DG E
ISLAND
Christy Carr, AICP, PWS
Senior Planner
www.bainbridgewa.gov
206.780.3719
Rich — Declaration
Exhibit 4
OGDEN
muf pkiY
WALLACE
ATTORNEYS
OGDEN MURPHY WALLACE, PLLC T 206.447.7000 OMWLAW.COM
901 FIFTH AVENUE, SUITE 3500 F 206.4470215
SEATTLE, WA 9 815 4-2 00 8
James E. Haney
jhaney@omwlaw.com
VIA EMAIL (JEREMIE6 LIPTONLAWGROUP.COM
AND VIA REGULAR MAIL
June 13, 2017
Mr. Jeremie Lipton
Lipton Law Group, PLLC
P.O. Box 11768
Bainbridge Island, WA 98110
Re: Rich Farm Matter re: Vegetation Management Permit (PLN50468 VEG)
Dear Mr. Lipton:
Joe Levan has asked me to respond to your emails of June 6 and June 9 regarding the Rich Vegetation
Management Permit. For the reasons set forth below, the City's position is that Condition #11 remains a
valid condition of the permit and the City intends to enforce that condition.
First, you are correct that the City's position is based, in part, on the fact that Condition #11 was not
appealed by Mr. and Ms. Rich. Paragraph 3.0 of the Riches' appeal "specifically challenged and
appealed" Conditions #1, 7, 12, and 13 of the Director's administrative decision dated December 22,
2016. While it is true that Paragraph 3.2 said that "Appellants appeal any other part of the decision which
supports the challenged conditions," the reference to "the challenged conditions" in Paragraph 3.2 clearly
refers back to those conditions "specifically challenged and appealed" in Paragraph 3.0. Condition #11
was not one of the challenged conditions and was never addressed in the appeal statement, in the
prehearing brief submitted by Mr. Reynolds, or in testimony or argument presented at the hearing. In
fact, the Hearing Brief of Appellants Crystal and Yurie Rich, submitted by Mr. Reynolds on February 22,
2017, clearly states in the "Introduction" on page 1 that only "[flour project conditions (one a SEPA
condition) are challenged," a statement that is expanded upon in Section II on page 2 - "The Challenged
I JEH1592350 .DOCX;1/13023.050016/050016}
Mr. Jeremic Lipton
June 13, 2017
Page 2
Conditions" by listing Conditions #1, 7, 12, and 13 as "the... project conditions [that] are challenged [by
the appeal]." Condition #I I was never part of the appeal filed by Mr. and Ms. Rich and your claim to the
contrary is not consistent with the record.
Second, even if the Riches could somehow be said to have appealed Condition #11, the Hearing
Examiner's March 9, 2017 Report and Decision upheld the condition and it is now too late to challenge
the Examiner's decision. On page 15 of the Hearing Examiner's Report and Decision, the Examiner
summarized his ruling as follows:
The SEPA threshold determination appeal of Crystal and Yurie Rich
identified as file no. PLN50468 is DENIED with respect to MDNS
condition no. 1; but MDNS condition no. 1 has been revised to more
accurately reflect current circumstances. The Riches' conjoined
vegetation management permit appeal is GRANTED as to project
conditions nos. 7, 12 and 13. All other MDNS and project conditions
ALCMOU 111 LII%d �1LY J VVUIUIUVU rvbvacsuyu III%@@§%& VI4IV.1& rvs -a...& vvv.v.v..
and SEPA Mitigated Determination of NonsignilYiY..cance issued December
22, 2016, are affirmed. (Emphasis added).
Thus, the Hearing Examiner expressly affirmed "all MDNS and project conditions" other than Conditions
#7, 12 and 13 and the modified Condition #1, and this affirmation included Condition #11. If the Riches
believed that the Hearing Examiner was incorrect in affirming Condition #11, they could have requested
reconsideration within ten working days of the decision (as required by Hearing Examiner Rule 12.2) or
they could have filed an action under the Land Use Petition Act (LUPA) within 21 days of the decision
(as required by RCW 36.70C.040). They chose to do neither of those things and Condition #11 is
therefore valid and enforceable and no longer subject to attack. See, Chelan County v. Nykreim, 146
Wn.2d 904, 932 -33, 52 P.3d 1 (2002) (failure to timely challenge a land use decision under LUPA
precludes collateral attack).
Finally, Condition #11 is justified on its merits as a mitigation measure and is within the parameters for
the nonfarmed buffers on the Rich property set by the Hearing Examiner's decision. Bainbridge Island
Municipal Code ( "BIMC ") 16.22.050.0 provides that the Director may condition a vegetation
management permit on "mitigation measures... which reduce adverse impacts on surrounding properties."
As the Hearing Examiner recognized in his Finding 40, "mitigating offsite farm impacts is the primary
purpose of the nonfarmed buffer requirement." Here, the Riches propose to create a bioretention cell for
farm runoff that is over 600 square feet in size and that will require significant ongoing maintenance in
the form of mowing, weeding and pest control. This biorentention cell and its maintenance will have
visual impacts, as well as impacts from odors, noise, and spraying that will be part of the farming and
maintenance activities. Locating the bioretention cell, drainage swales and other drainage features
outside of the nonfarmed buffer is, therefore, as the Hearing Examiner put it in his Finding 42, "rationally
based on a credible connection to mitigating adverse risks" from these features and from the farm
operations. Condition #11 meets both the requirements of the BIMC and the requirements of the Hearing
Examiner's decision.
Condition #11 is a valid and enforceable condition of the vegetation management permit and the Riches
are required to comply with the condition. If you carry through on your threat to bring a motion for
contempt or a wrongful interference lawsuit, please be assured that the City will defend itself and its
conditions vigorously and will seek to recover its attorney's fees and costs under CR 11 or other
applicable authority.
(J EH1592350 .DOCX;1/13023.050016/050016 )
Mr. Jeremie Lipton
June 13, 2017
Page 3
Please feel free to contact me if you have any questions, as Mr. Levan has retained me to represent the
City in this matter.
Very truly yours,
OG EN MURPHY WALLACE, P.L.L.C.
James E. 1-lan&.x
:JEH
cc: Joe Levan
1JEH1592350.DOCX;1 /13023.050016/050016 1
Rich — Declaration
Exhibit 5
Memorandum
Date: July 6, 2017
To: Crystal Rich
From: Adam Wheeler, P. E.
Browne Engineering, Inc.
Re: Review of 8226 Sands Avenue Drainage Report
I have reviewed the drainage report and plans prepared by Seabold Engineering, LLC dated
11 /11/16 as requested. The site is located to the north of Quail Hill Road and east of Sands
Avenue. The site is approximately 6.96- acres. The stormwater design by Seabold Engineering,
LLC. provides a mitigation system for a proposed farm and a future residence. The design
appears to meet the City's stormwater code and general engineering practice.
The City has raised concerns that the rain garden, as designed within the nonfarm buffer is not
appropriate since it treats runoff from farm areas. While it is true the rain garden will treat runoff
from farmed areas it will also provide additional benefits that makes it appropriate to be placed in
the nonfarm buffer.
A rain garden is a specially designed low area that is lined with an engineered soil mix that in
combination with vegation removes pollutants from stormwater. A rain garden is required to be
planted with a variety of plants. These plants will actually increase the apparent buffer width from
25 feet to around 70 feet. In addition, the proposed location of the rain garden is in the low area on
the site that will allow the stormwater to be easily collected and treated. Moving the rain garden
north would require that it also move west which would increase the amount of swale that would
need to be constructed.
While there is required maintenance of the rain garden, such as weeding, there is no reason why
this maintenance would be any different than the remainder of the nonfarm buffer. There will be
times when some sediment will need to be removed and some of the plants will need to be
replaced. These are the same things that will need to be accomplished in the remainder of the
buffer.
1 should also mention that the farm plan that you prepared, in cooperation with the Kitsap
Conservation District, does not rely on the rain garden to properly manage the pasture areas.
Instead the farm plan provides a number of management practices for the pasture area to handle
pollutants, such as Use Exclusion, Heavy Use Area Protection and Catch /Cover Crop. By using
these practices the runoff from the pasture areas will be very similar to a lawn.
For these reasons I believe that the rain garden is not a farm use and should remain as shown on
the drainage plan.
If you have any questions or need additional information please contact me.
Browne Engineering, Inc. 241 Ericksen Avenue NE Bainbridge Island, WA 98110
phone (206) 842 -0605 fax (206) 780 -9322
Rich — Declaration
Exhibit 6
From: Janelle Hitch [ mailto:jhitch @bainbridgewa.gov]
Sent: Wednesday, July 19, 2017 1:27 PM
To: Crystal Rich <richclan @native6.com>; Dave Erbes <derbes @bainbridgewa.gov>
Cc: Yurie Rich <yrich @native6.com >; Dennis D. Reynolds Law Office <dennis @ddrlaw.com >; Jeremie Lipton
< jeremie @liptonlawgroup.com >; Doug Schulze <dschulze @bainbridgewa.gov>; Joe Levan <jlevan @bainbridgewa.gov >;
Christy Carr <ccarr @bainbridgewa.gov>
Subject: RE: Vegetation Manage Permit (PLN50468 VEG) - Farm Plan
Crystal,
The requirement is based on what can and cannot be in the nonfarm buffer. You will have to discuss this requirement
with the planning department.
- Janelle
From: Crystal Rich [mailto:richclan @native6.com]
Sent: Tuesday, July 18, 2017 12:27 PM
To: Janelle Hitch <jhitch @bainbridgewa.gov >; Dave Erbes <derbes @bainbridgewa.gov>
Cc: Yurie Rich <yrich @native6.com>; Dennis D. Reynolds Law Office <dennis @ddrlaw.com>; Jeremie Lipton
<je rem ie @liptonlawgroup.com>; Doug Schulze <dschulze @bainbridgewa.gov>; Joe Levan <jlevan @bainbridgewa.gov>
Subject: RE: Vegetation Manage Permit (PLN50468 VEG) - Farm Plan
Janelle,
What is the reasoning for moving the bioretention cell? You approved the stormwater engineering plan as it was
written. There is no code issues with its placement. It is in the most advantageous topographical position for the
site. The Hearing Examiner upheld our appeal that the nonfarm buffer has specific use allowances, which includes
stormwater filtration. Please give me a specific reason why you are asking us to move it.
Thanks,
Crystal
From: Janelle Hitch [ mailto:ihitch @bainbrid¢ewa.RovI
Sent: Tuesday, July 18, 2017 8:18 AM
To: Crystal Rich <richclan @native6.com >; Dave Erbes <derbes @bainbridl:ewa.Rov>
Cc: Yurie Rich <vrich0native6.com>; Dennis D. Reynolds Law Office <dennis @ddrlaw.com>; Jeremie Lipton
<[eremie@IiptonlawRroup.com >; Doug Schulze <dschulze@bainbrid ¢ ewa.Rov >; Joe Levan <llevan @bainbrid¢ewa.Rov>
Subject: RE: Vegetation Manage Permit (PLN50468 VEG) - Farm Plan
The City's position is that the bioretention cell must be placed outside of the non -farm buffer. The outfall from the cell
may reside inside that buffer.
Thanks,
CITY OF
BAINBRIDGE
ISLAND
Janelle C. Hitch, P.E.
Development Engineer
www. bainbrideewa.eov
ihitch@bainbridpewa.gov
206.780.3783 (office)
From: Crystal Rich [mailto:richclan @native6.coml
Sent: Wednesday, July 12, 2017 3:38 PM
To: Janelle Hitch <[hitch @bainbridaewa.Rov >; Dave Erbes <derbes @bainbridgewa.Rov>
Cc: Yurie Rich <vrich @native6.com>; Dennis D. Reynolds Law Office <dennis@ddrlaw.com >; Jeremie Lipton
<jeremie@IiptonlawRroup.com>; Doug Schulze <dschulze @bainbrid¢ewa.Rov>
Subject: FW: Vegetation Manage Permit (PLN50468 VEG) - Farm Plan
Janelle & Dave,
Please find the attached review from Adam Wheeler for our Stormwater Plan. I should have included you both when I
sent this on to Christy Carr. We hired him for a second review of the approved plan in the hopes to move forward with
our project.
As confirmed by this report, you will see the stormwater design, as approved from the initial submission from Seabold
Engineering, meets Bainbridge Island Municipal Code, sizing requirements and is in the most advantageous
topographical location. The original stormwater design did incorporate the impervious surface area of the homesite,
driveway, and shop in the calculations for the biorientation cell and can be referenced in the 48 page original report on
file with our permit. Adam Wheeler has confirmed the calculations are correct.
Because the stormwater plan was approved and now reviewed by a second engineer to meet COBI requirements, I don't
believe a new form is necessary for the building permit. Confirmation that infiltration would be adequately addressed
through dispersion is outlined in the original report and confirmed by Adam Wheeler.
Please feel free to contact me if you have any questions.
Thanks,
Crystal
360 - 981 -7484
From: Adam Wheeler [mailto:adam@brownewheeler.com)
Sent: Thursday, July 06, 2017 3:12 PM
To: 'Crystal Rich' <richclan@native6.com>
Subject: RE: Vegetation Manage Permit (PLN50468 VEG) - Farm Plan
Crystal,
Attached is a memorandum addressing the Seabold design and the rain garden in the nonfarm buffer. Let me know if
you need anything else.
Thanks,
Adam Wheeler, PE
Browne Wheeler Engineers, Inc.
206.842.0605