2017-07-24 MOTION TO CLARIFY1
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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,
No. PLN50468 VEG
APPELLANTS' MOTION TO CLARIFY
I. INTRODUCTION/REQUSTED RELIEF
Pursuant to the Rules of Practice and Procedure of the Office of Hearing Examiner,
and the Examiner's inherent power to interpret and apply his own orders and rulings, Crystal
and Yurie Rich, Appellants herein, respectfully request that the Examiner clarify certain parts
of his decision entered in this matter on March 9, 2017. This motion is based upon the
records and files herein and the Declaration of Crystal Rich In Support of Motion to Clarify
dated July 24, 2017 ( "Rich Decl. ").
Specifically, the request relates to Condition No. 11 of the City's Administrative
Decision which provides as follows:
"11. No drainage features (including bioretention cell and grass
lined swales shown in the Drainage Plan shall be located within
the required 25 400t nonfarmed buffer with the exception of the
bioretention cell outlet."
APPELLANTS' MOTION TO CLARIFY - 1 of 11
[90373-1]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
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The Examiner up -held Condition No. 11 stating.
"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).
Since issuance of the ruling, a difference has arisen between the City and Bainbridge
Island Staff and Appellants as to whether the affirmance of Condition No 11 is subject to the
Examiner's other rulings as to Conditions Nos 7, 12 and 13, which allow use of the 25 400t
buffer over objection of the City who wanted a "no touch buffer." See Rich Decl., 119
Under the City position, the Examiner's ruling on Condition 7 is read out on the Decision,
because staff asserts none of the storm water treatment structure components can be placed
with the 25 -foot buffer. Rich Decl., ¶¶ 19, 22, and 23; Exhibits 4 and 6. Mr and Mrs Rich
request that the Examer rule that this decsion on Condition No 11 is "subject to" and
controlled by his rulinng on Conditions Nos. 7, 12 amd 13.
II. ARGUMENT
The requirement for a "nonfarmed buffer" was one of the primary issues in the
administrative hearing on the Rich's appeal, which was held on February 22, 2017. Project
Condition No. 7 provides as follows:
"7. A 25 400t nonfarmed buffer must be provided along the
entire perimeter of the property. In accordance with the
Director's code interpretation (Attachment H), all trees and
existing vegetation shall be retained within areas designated as
a ` nonfarmed buffer' with the exception of the construction
entrance."
APPELLANTS' MOTION TO CLARIFY - 2 of 11
[90373-11
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
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The City justified the imposition of Condition No. 7 based on the "Code Interpretation
of the Director of Planning and Community Development" dated July 7, 2016 ( "Director's
Interpretation "). In the words of the Hearing Examiner, the Director's Interpretation included
a "strained attempt to argue that the use of the world "left" in the sentence from BIMC
16.22.060.A.2. quoted above unequivocally mandates tree preservation in the nonfarmed
buffer." (HEX Decision paragraph 37).
The Hearing Examiner turned to other portions of the BIMC to discern the general
purpose of "buffers," concluding as follows:
"As defined, buffers serve two purposes. One is to protect
critical areas. The other is "to reduce the impact of undesirable
sights, sounds, odors..." The Riche's nonfarmed buffer is not
needed to protect critical areas. Ergo, its function must be to
reduce the undesirable offsite impacts of farm operations.
(HEX Decision, paragraph 39, emphasis in original).
The Hearing Examiner continues in his analysis of the purpose of the nonfarmed
buffer by stating the following.
"More to the point, an interpretation of the term ` nonfarmed
buffer' that discretely targets activities potentially offensive to
adjacent uses seems more likely to pass legal muster if
judicially challenged on constitutional grounds as an unlawful
taking or deprivation of due process than a blanket provision
relying on rigid categorical vegetation controls. A regulatory
limitation imposed on real property uses needs to be rationally
based on a credible connection to mitigating actual adverse
risks, not simply on the ritual citation of generic `concerns' that
may or may not in fact apply to the property under review.
Categorically excluding plainly harmless and non - impactive
uses from a buffer area merely because they might possess
some agricultural utility seems especially indefensible." (HEX
Decision, paragraph 42).
1/I
APPELLANTS' MOTION TO CLARIFY - 3 of 11
[90373 -1I
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
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Section H.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).
Section ILEA of the Staff Report provides as follows:
"4. Mitigation measures are proposed which reduce adverse
impacts on surrounding property. Mitigation measures are
required as conditions of approval to reduce adverse
impacts on adjacent properties (Conditions 1, 4, 5, 7, and
13)." (emphasis in original).
There are two notable observations to be drawn from the City's Staff Report with
respect to Project Condition No. 11. First, 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. Second, the City approved the Rich's drainage plan and SWPPP, which
included drainage features (including bioretention cell and grass lined swales) in the
nonfarmed buffer. The above -cited Sections of the Staff Report lead to one inescapable
conclusion: Project Condition No. 11 was based entirely on Project Condition No. 7 and the
City's attempt to enforce a no -touch buffer in which all native vegetation must remain.
APPELLANTS' MOTION TO CLARIFY - 4 of 11
[90373 -1]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780-6865 (Facsimile)
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Pursuant to the City's statements in its Staff Report, Project Condition no. 11 was
never intended as a mitigation measure, nor was it necessary as a mitigation measure. Project
Condition No. 11 was imposed after the City's approval of the Rich's Drainage Plan which
included bioretention cells and drainage features in the nonfarmed buffer and only after the
City became committed to preserving all native vegetation in the nonfarmed buffer.
The Rich's appeal of Project Condition No. 7 was granted and it was revised by the
Hearing Examiner to read as follows:
"7. A 25400t vegetated nonfarmed buffer must be provided
along the exterior parcel perimeters adjacent to the cleared
portions of the property to protect nearby residential uses from
adverse farm impacts. Within this buffer existing vegetation
may be removed and replaced with hedgerows or plantings
other than pasture grass. No agricultural activities or uses shall
be permitted in the nonfarmed buffer that have the potential for
creating adverse offsite impacts, such as may result from
livestock or poultry pens, manure storage or applying toxic
chemicals."
The Rich's have directly, and through counsel, communicated to the City that
Condition No. 11 was rendered invalid by the Hearing Examiner's decision with respect to
Condition No. 7. See attached emails, Rich Decl. ¶ 21 In addition, they advised that they
appealed all conditions related to the three specific conditions emphasized in their appeal,
pointing out the following language.
Appellants appeal any other part of the Decision which supports the challenged
Project Conditions.
(Rich Appeal, paragraph 3.2)
The City's response to the Rich's numerous pleas and assertions concerning Project
Condition No. 11 have been responded to by the City by dogmatically clinging to one
paragraph in the Hearing Examiner's decision quoted infra, pp 1 -2, up- holding Condition No.
APPELLANTS' MOTION TO CLARIFY - 5 of 11
[90373 -1]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
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11. Again, this language is in the context of striking down Condition Nos., 7, 12 and 13. The
City ignores the remainder of the Hearing Examiner's thorough and exhaustive analysis
rejecting the City's attempt to enforce a no -touch buffer. See Rich Decl., ¶ 22
In a June 13, 2017 letter from the City's outside counsel, Mr. Jim Haney, asserts that.
(a) the Riches did not appeal Project Condition No. 11 and the Hearing Examiner granted the
appeal with respect to Project Conditions 7, 12, and 13, but affirmed "all other MDNS and
project conditions... "; and (b) Project Condition No. 11 is justified as a mitigation measure
under BIMC 16.22.050.0 to "reduce adverse impacts on surrounding properties." Rich Decl.,
123, Exhibit 4
With respect to the assertion that the Rich's did not appeal Project Condition No. 11,
this incredibly rigid and entirely technical position completely ignores the fact that Project
Condition No. 11 was inextricably tied to and dependent upon Project Condition No. 7. The
City's dogmatic commitment to a summary statement in the Hearing Examiner's decision is
as inflexible and strained as was its interpretation of the term "nonfarmed." The City turns a
blind eye to approximately 20 paragraphs that precede the summary paragraph, in which the
Hearing Examiner makes it abundantly clear that the City's political goal of a not -touch
buffer is unsupported by the BIMC and legally indefensible under the United States
Constitution.
In apparent recognition of the weakness in their position, the City, through Mr.
Haney's letter, attempts to preserve Project Condition No. 11 by asserting that it "is justified
on its merits as a mitigation measure." This attempt to retroactively impose a mitigation
measure that was not included in the mitigation measures identified in the Staff Report is as
APPELLANTS' MOTION TO CLARIFY - 6 of 11
[90373 =1]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
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transparent as the City's political agenda to interpret the single word "left" as requiring
retention of all trees in the nonfarmed buffer.
The City, through Mr. Haney, offers the following support for their position that
Condition No. 11 is a mitigation measure.
(a) "The Riches prop(
runoff that is over
require significant
mowing, weeding
)se 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. "(Rich Decl. Ex. 4)
These assertions are quite remarkable. The City, through Mr. Haney, appears to be
asserting that "mowing, weeding and pest control" are unique farming operations. Contrary
to the assertions of the City that excluding these uses has a rationally based connection to
mitigating risks from farm operations, these uses are ubiquitous and are inherent in all land
uses, including residential. Rich Decl., ¶ 27 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.
Ibi The techniques' work best when the vegetation is allowed to mature with mini
d. mal to no
mowing. Id. Spraying will not be used on an organic farm, and pest control is minimal —
potentially only including dunks for mosquitos. Id.
In addition, 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). Thus, a Bioretention Cell includes less mowing and weeding than does a normal
APPELLANTS' MOTION TO CLARIFY - 7 of 11
[90373-1]
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780-6777
(206) 780-6865 (Facsimile)
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residential use. The City's assertion under paragraph 3.30 (a) above therefore lacks any
credibility whatsoever. 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.
Lest it be questioned whether the bioretention cells and drainage features in the
nonfarmed buffer would serve as a catchment for pollutants from farm operations, reference is
made to the Rich's Farm Plan, which has been approved by the City. See Rich Decl., $ 29
The Rich's Farm Plan 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
Fencing, Pasture and Hayland Planting, 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. Rich Decl., 128
This Farm Plan was prepared for the Rich's 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. Rich Decl., ¶ 29 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. Ibid.
A second engineer, Adam Wheeler, was hired by the Appellants to review the original
approved stromwater plan. Rich Decl., 130 This was done at the request of the City. His
memorandum reinforces the location of the drain field, bioretention cell and grass Swale in its
APPELLANTS' MOTION TO CLARIFY - 8 of I I
[90373-1
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
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original place as being the best option for the site. Specifically, he concludes that the facility
is properly sized, and placed, and that it meets Code requirements. See Rich Decl., ¶ 30
(Browne Engineering, Inc. Memorandum, July 6, 2017), Exhibit 5. Last, but not least, it is
important to understand that the stormwater infrastructure borders a public street. Rich Decl.,
¶ 29 Thus, even if there were impacts from the stormwater facility (which there are not),
there is no residential use adjacent to the infrastructure for which a buffer would be required.
The Browne Engineering, Inc. Memorandum has been provided to the City, yet staff
continues to insist on the Rich's compliance with Project Condition No. 11. Rich Decl., ¶¶
31 -32, Exhibit 6. The City's insistence is indefensible given the Hearings Examiner's
rejection of the no -touch buffer and the revision to Condition No. 7 in the Examiner's
Decision. The City's refusal to inspect is casing potential signfcant delays with attendnane
damages. See Rich Decl., ¶¶ 35 -380
Nevertheless, the City has refused to even inspect the Rich's clearing boundaries that
have been marked in accordance with the Class IV forest practices permit that the Rich's
obtained from the Washington State Department of Natural Resources (DNR). See Rich
Decl., ¶¶ 16 -18, Exhibit 2.
The City PermitBIMC Code requires that the clearing boundaries be inspected by the
City's Public Works department. On June 6, 2017, Mr. Jonathan Bass with the City Public
Works Department inspected and approved the construction entrance to the Subject Property,
but informed the Rich's that Planning and Community Development specifically instructed
him not to inspect the clearing limits because the Rich's had not submitted a revised plan
moving their bioretention cell out of the nonfarmed buffer. Rich Decl., ¶ 18
APPELLANTS' MOTION TO CLARIFY - 9 of 11
[90373 =1]
DENNis D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780-6777
(206) 780 -6865 (Facsimile)
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The Rich's logging contractor originally had the clearing schedule for late May — early
June, 2017. Rich Decl.,136 That date has come and gone and the Rich's are now at risk of
losing his commitment to perform the clearing work until the rainy season. A sore loser is a
sore loser. The City's refusal to even perform the inspection of the clearing limits is
completely inexcusable. The inspection of the clearing limits could have been performed
without any prejudice to the City's indefensible position as to Condition No. 11.
Due to the City's refusal to the perform the inspection, the Rich's are now at risk of
having to perform clearing operations during the rainy season at a much higher cost than
performing the work during the dry season, as originally scheduled. See Rich Decl.139 In
fact, the delay in inspecting the clearing limits has potentially compromised the entire project
and validity of the vegetative management permit. Ibid.
III. CONCLUSION
For the reasons stated, Appellants defer to the Examiner exercise of sound discretion.
It is hoped that the Examiner will clarify that his statements as to Condition No. 11 are
"subject to" his rulings on Conditions Nos 7, 12 and 13
DATED this 24`s day of July, 2017.
DE 7SD. DS LAW OFFICE
By
Dennis D. Reynolds, WSBA #04762
Attorneys for Appellants Crystal and Yurie Rich
APPELLANTS' MOTION TO CLARIFY - 10 of 11
[90373 -11
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)
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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'fmail
(206) 447 -7000, tel / (206) 447 -0215, fax
jhaney@.omw.law.com; mfrazerAomwlaw.com;
gza1Ca.omwlaw.corn
Attorneys for 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
a
—'mail
City of Bainbridge Island Staff Attorney
DATED at Bainbridge Island, Washington, this 24`h day of July, 2017.
�.�..� 15.E ---
Jo Brenner
Paralegal
APPELLANTS' MOTION TO CLARIFY - 11 of 11
[90373 -11
DENNis D. REYNOLDS LAW OFFICE
200 Winslow Way West, suite 380
Bainbridge Island, WA 98110
(206) 780 -6777
(206) 780 -6865 (Facsimile)