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BEFORE THE CITY OF BAINBRIDGE ISLAND
OFFICE OF HEARING EXAMINER
CRYSTAL AND YURIE RICH,
Appellants,
V.
No. PLN50468 VEG
RESPONSE TO MOTION TO CLARIFY
CITY OF BAINBRIDGE ISLAND, acting
through its Department of Planning and
Community Development,
Defendant.
I. INTRODUCTION - REQUESTED ACTION
On March 9, 2017, nearly five months ago, the Hearing Examiner issued his Report and
Decision on Vegetation Management and SEPA Appeals in this matter. The Hearing Examiner
summarized his decision 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 stated in the City's combined administrative
vegetation management permit decision and SEPA Mitigated
Determination of Nonsignificance (MDNS) dated December 22,
2016, are affirmed.
(Emphasis added). Report and Decision on Vegetation Management and SEPA Appeals at 15.
Among the conditions upheld by the Hearing Examiner was project condition no. 11,
( "Condition 11 ") which provides as follows:
{ JEH1610065 .DOC;l/13023.050016/050016 )
RESPONSE TO MOTION TO CLARIFY - 1
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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11. No drainage features (including bioretention cell and grass
lined swales shown in the Drainage Plan) shall be located within
the required 25 -foot nonfarmed buffer with the exception of the
biorention cell outlet.
In the guise of a "Motion to Clarify," the Riches now request that the Hearing Examiner
reverse that portion of his decision upholding Condition 11 and completely nullify that condition
by making it "subject to" his rulings on Conditions 7, 12, and 13. The Hearing Examiner should
see the "Motion to Clarify" for exactly what it is: an untimely appeal of Condition 11 and an
untimely request for reconsideration of the Hearing Examiner's March 9, 2017 decision. The
"Motion to Clarify" must be denied.
II. ARGUMENT
A. THE HEARING EXAMINER LACKS AUTHORITY TO GRANT THE MOTION
TO CLARIFY.
1. Neither the BIMC nor the Hearing Examiner's Rules provide for a Motion to
Clarify and the Hearing Examiner has No Inherent Power to {Grant such a Motion.
The Riches wrongly assert that they are bringing their motion "pursuant to the Rules of
Practice and Procedure of the Office of the Hearing Examiner and the Examiner's inherent power
to interpret and apply his own orders and rulings." Appellants' Motion to Clarify at 1. The Riches
have cited to no "Rule of Practice and Procedure" that authorizes the Hearing Examiner to
"clarify" his ruling by nullifying a condition that he previously upheld, and a review of the
Hearing Examiner Rules for the City of Bainbridge Island reveals that no such rule exists. After
issuance of a decision, the only relief available to an appellant under the Hearing Examiner's
Rules is a motion for reconsideration, and any such motion "must be filed within ten (10)
working days of the date of the Examiner's decision." Chapter III, Section 12.2, Bainbridge
Island Hearing Examiner Rules. Because the Riches' "motion to clarify" was not filed within ten
working days of the Hearing Examiner's March 9, 2017 decision, it cannot be a motion for
{ JEH1610065 .DOC;l/13023.050016/050016 } OGDEN MURPHY WALLACE, P.L.L.C.
RESPONSE TO MOTION TO CLARIFY - 2 901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215
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reconsideration and the Hearing Examiner's Rules authorize nothing else. The Riches' reliance
on the Hearing Examiner's Rules as authority for their motion is misplaced.
The Riches' reliance on the Hearing Examiner's "inherent power" is similarly misplaced.
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. I 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, the "inherent power" the Riches claim to authorize their motion does not exist; in order for
the Hearing Examiner to possess a power, it must be 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. 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. Nowhere in
{ JEH1610065 .DOC;1/13023.050016/050016 }
RESPONSE TO MOTION TO CLARIFY - 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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either of these two sources of authority has the City Council granted the Hearing Examiner the
power to "clarify" his decision five months after issuing it by nullifying a condition that he
previously upheld. In the absence of such an expressly granted power, the Hearing Examiner
lacks authority to grant the motion to clarify made by the Riches and the motion must be denied.
Having failed to demonstrate the existence of an express or inherent power, the Riches
may try to argue that the Hearing Examiner has an implied power to clarify his ruling. This is
incorrect. While administrative agencies do have such powers as are necessarily implied to carry
out their legislative mandate, Lenander v. Wash. State Dep't of Retirement Systems, 186 Wn.2d
393, 404, 377 P.3d 199 (2016); Tuerk v. Dep't of Licensing, 123 Wn.2d 120, 124 -25, 864 P.2d
1382 (1994), agencies may not exercise this implied power in a manner that amends their
enabling legislation. Wash. Public Ports Ass'n v. Dep't of Revenue, 148 Wn.2d 637, 646, 62 P.3d
462 (2003); Green River Comty Coll. v. Higher Educ. Pers. Bd., 95 Wn.2d 108, 112, 622 P.2d
826 (1980). Here, the Bainbridge Island City Council provided two specific mechanisms for
nullifying a project condition: the filing of an appeal under BIMC 2.16.020.P.I within 14 days of
the date of the decision appealed from, and the filing of a motion for reconsideration under
Chapter III, Rule 12.2 of the Hearing Examine Rules within 10 working days of the date of the
Hearing Examiner's decision on that appeal. The Hearing Examiner does not have the implied
power to create a third mechanism for nullifying a project condition though a motion to clarify.
The motion to clarify must be denied.
2. The Riches did Not Appeal Condition 11 and their Attempt to do so under a
Motion to Clarify is Untimely.
The Riches' argument that they have challenged Condition 11 all along is contradicted by
the record. Paragraph 3.0 of the Riches' Appeal of Administrative Decision "specifically
challenged and appealed" SEPA condition no. 1 and project conditions nos. 7, 12, and 13 of the
Director of Planning and Community Development's ( "Director's) decision. Ex. 8 at p. 2 -3.
While paragraph 3.2 of the Riches' Administrative Appeal said that "Appellants appeal any other
{ JEH 1610065. DOC;1 / 13023.050016/050016 1
RESPONSE TO MOTION TO CLARIFY - 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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part of the decision which supports the challenged conditions," the reference to "the challenged
conditions" clearly referred back to the conditions "specifically challenged and appealed" in
paragraph 3.0. Condition 11 was not one of the specifically challenged conditions and was never
addressed in the Administrative Appeal, in the Riches' prehearing brief, or in the testimony and
argument presented to the Hearing Examiner. In fact, the Hearing Brief of Crystal and Yurie
Rich, filed herein 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 Conditions," by listing SEPA condition no. 1 and
project conditions nos. 7, 12, and 13 as "the... project conditions that are challenged [by this
appeal]." Condition 11 was thus never part of the appeal filed by the Riches and their attempt to
nullify the condition now, five months after the Hearing Examiner issued his Report and
Decision, is nothing more than an untimely appeal of the condition. If the Riches wanted to
appeal Condition 11, they could have filed an appeal of the condition within 14 days after the
Director issued his decision on their vegetation management permit on December 22, 2016. This
they did not do and their attempt to appeal the condition now in the guise of a motion to clarify
must be denied.
3. The Riches did Not Repuest Reconsideration of the Hearing Examiner's
Decision to Uphold Condition 11 and their Attempt to do so under a Motion to Clarify is
Untimely.
Because the Hearing Examiner expressly upheld Condition 11, the Riches' attempt to
nullify the condition through a motion to clarify is nothing more than an untimely request for
reconsideration. Under Chapter III, Rule 12.2 of the Hearing Examiner Rules, a motion for
reconsideration is untimely unless it is filed within ten working days of the Hearing Examiner's
Report and Decision. Here, the Hearing Examiner's Report and Decision was issued on March 9,
2017 and the Riches' motion to clarify was filed on July 24, 2017 nearly five months later. The
motion is untimely and must be denied.
{ JEH1610065 .DOC;1/13023.050016/050016 }
RESPONSE TO MOTION TO CLARIFY - 5
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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4. The Hearing- Examiner's Decision to Uphold Condition 11 is Res Judicata
and Cannot be Reconsidered and Revised at this Time.
Where a land use decision is not timely appealed under the Land Use Petition Act,
Chapter 36.70C RCW, the decision is res judicata and is binding on all parties involved, even if
the decision is in error. 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.
Jefferson County, 160 Wn. App. 647, 248 P.3d 597 (2011). In this case, the Hearing Examiner
issued his Report and Decision on Vegetation Management and SEPA Appeals on March 9,
2017. The Riches did not file a petition for review under the Land Use Petition Act challenging
that part of the Hearing Examiner's decision upholding Project Condition 11 within twenty -one
days of the decision, as required by RCW 36.70C.040(3). The decision is therefore res judicata
and is binding both on the parties and on the Hearing Examiner. The Riches' Motion to Clarify,
which requests that the Hearing Examiner overturn his decision by nullifying a condition he
previously upheld, must be denied.
5. Public Policy Supports Denial of the Riches' Motion.
In their motion, the Riches complain that the City's view on the timeliness of their
challenge to Condition 11 is "incredibly rigid and technical" and constitutes a "dogmatic
commitment" to that portion of the Hearing Examiner's decision upholding the condition.
Motion to Clarify at 6. Contrary to this histrionic rhetoric, the City's position is based on sound
law and policy. If the Riches can, through a "motion to clarify" that is nowhere authorized in the
Hearing Examiner Rules, nullify a project condition that was (a) not appealed to the Hearing
Examiner in a timely manner, (b) not the subject of a timely motion for reconsideration after the
Hearing Examiner expressly upheld it, and (c) not timely appealed to the superior court under
LUPA, then the deadlines established by BIMC 2.16.020.P.1, Chapter III, Section 12.2 of the
Hearing Examiner Rules, and RCW 36.70C.040(3) for challenging land use decisions, are
completely meaningless. Public policy strongly favors administrative finality of land use
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RESPONSE TO MOTION TO CLARIFY - 6
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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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). The City's
opposition to the Riches' motion is based on the sound public policy of administrative finality,
which allows all parties to move forward in reliance on the Hearing Examiner's express rulings
after the reconsideration and appeal deadlines have run. Denying the Riches' motion furthers this
public policy, while granting the motion flies in its face and means that no administrative
decision that an appellant disagrees within is ever truly final. The Hearing Examiner should deny
the motion in the interest of administrative finality.
B. EVEN IF THE HEARING EXAMINER HAS AUTHORITY TO CONSIDER THE
RICHES' MOTION, CONDITION 11 IS CONSISTENT WITH THE HEARING
EXAMINER'S DECISION AND SHOULD BE UPHELD.
The Riches incorrectly argue that Condition 11 is inconsistent with the Hearing
Examiner's decision on project conditions nos. 7, 12, and 13. On the contrary, 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." Report and Decision on Vegetation Management
and SEPA Appeals at 10. Here, the Riches propose to create a bioretention cell for farm runoff
that is 3,375 square feet in size, 600 square feet of which was proposed to be located in the non -
farmed buffer. Declaration of Christy Carr at ¶5. In addition to the bioretention cell, the Riches
propose to place over 1000 square feet of grass -lined drainage Swale within the non - farmed
buffer, together with three rock check dams. Id. These facilities are more than three times larger
than the "typical" drainage facility associated with residential development and will require
ongoing maintenance in the form of mowing, weeding, and pest control. Id. at ¶¶ 6 -7, requiring
maintenance to be performed over a significantly larger area than any stormwater infrastructure
associated with the surrounding neighborhood. Id. This bioretention cell and its maintenance will
have ongoing impacts from odors, noise, nuisance plants, pests and aesthetics that will be part of
{ JEH1610065 .DOC;1/13023.050016/050016 }
RESPONSE TO MOTION TO CLARIFY - 7
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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the farming and maintenance activities. Id. at 7. Locating the bioretention cell 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. The motion to clarify the decision by
nullifying Condition 11 must be denied.
The Riches claim that the City is attempting to retroactively justify Condition 11 as a
mitigation measure and that the Hearing Examiner should therefore disregard the City's
evidence. But this illustrates precisely why appeal deadlines and administrative finality are so
important and so universally adhered to by the courts. If the Riches had appealed Condition 11 in
a timely manner, as they had the right to do under BIMC 2.16.020.P.1, the City would have been
afforded the opportunity to present evidence at the hearing to justifying Condition 11 as a
mitigation measure for the impacts that would be generated by the Riches' farming activity.
Because the Riches did not appeal Condition 11, the condition was not an issue and the City did
not present such evidence. The Riches now attempt to "have their cake and eat it too" by
retroactively appealing Condition 11 while precluding the City from presenting evidence
justifying the condition. The Hearing Examiner should not allow the Riches to manipulate the
appeals process in this manner. If the Hearing Examiner has any inclination to allow the Riches
to retroactively challenge Condition 11 (which, for all of the reasons set forth above, is beyond
the Hearing Examiner's authority), then the Hearing Examiner must consider the City's evidence
in support of the condition. Condition 11 is justified as a mitigation measure and is thus
consistent with the Hearing Examiner's decision on project conditions no. 7, 12, and 13. The
Riches motion should be denied on its merits even if it is not denied on procedural grounds.
III. CONCLUSION
For all of the reasons set forth above, the Riches' Motion to Clarify must be denied. The
9 Riches are attempting, through their motion, to obtain relief that is not authorized under the
{ JEH1610065 .DOC;1/13023.050016/050016 }
RESPONSE TO MOTION TO CLARIFY - 8
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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BIMC or the Hearing Examiner Rules. The motion is, at its core, an untimely appeal of
Condition 11 and an untimely motion for reconsideration of the Hearing Examiner's decision
upholding the condition. The Hearing Examiner's decision to uphold Condition 11 is res judicata
and denying the Riches' motion to nullify that condition furthers the strong public policy in favor
of the finality of administrative decisions. Finally, even if the Hearing Examiner were to consider
the motion, Condition 11 is consistent with the Hearing Examiner's decision and is justified as a
mitigation measure for farm impacts that meets the requirements of BIMC 16.22.050.C. The City
respectfully requests that the Hearing Examiner deny the motion and bring an end to the Riches'
collateral attack on the Hearing Examiner's March 9, 2017 decision in this matter.
DATED this 31 st day of July, 2017.
(JEH1610065 .DOC;1/13023.050016/050016 )
RESPONSE TO MOTION TO CLARIFY - 9
OGDEN 1 URPHY WALLA E,
C�-
By i
James E. Haney, W A #11
Attorney for Defendants
City of Bainbridge Island
P.L.L.C.
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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DECLARATION OF SERVICE
I, Gloria Zak, make the following true statement.
On the 31 st day of July, 2017, I served the foregoing Response to Motion to Clarify and
the associated Declaration of Christy Carr in Response to Motion to Clarify on the following:
Original sent via U.S. Mail, and E -mail to:
Stafford Smith, Hearing Examiner
City of Bainbridge Island
280 Madison AVE N
Bainbridge Island, WA 98110
Email: ismith @bainbridgewa.gov
Copy via U.S. Mail and E -mail to:
Dennis D. Reynolds
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island WA 98110
Email: 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 31 st day of July, 2017.
f
Gloria J. Zak
{JEH1610065.DOC;1/ 13023.050016/050016 1
RESPONSE TO MOTION TO CLARIFY - 10
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215