APPEALMARCUS GERLACH
579 Stetson Place
Bainbridge Island, WA 98110
925.984.9631
March 28, 2013
Rosalind Lazoff, City Clerk
City of Bainbridge Island
280 Madison Ave
Bainbridge Island, WA 98110
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RE: Appeal of Administrative Decision by the City of Bainbridge Island (COBI) to
deny the bulkhead and COBI's imposition of arbitrary and capricious restrictions
on the dock and retaining wall included in application SSDP 13500B, as
identified in Notice of Administrative Decision and SEPA Mitigated
Determination ofNonsignificance (MDNS)
Dear Ms. Lazoff:
The MSDS was improperly and prematurely issued as this application is the subject of
litigation, which was filed January 17, 2013 and is presently being set for trial in the
Kitsap County Superior Court The litigation includes but is not limited to COBI's
violation of the Appearance of Fairness Doctrine by a COBI employee /agent. The
Declaratory Relief action (Attached as Exhibit 1) is properly before the Kitsap County
Superior Court. The Complaint seeks removal of the application, in its entirety, to the
Kitsap County Planning Department in reliance upon a statement from the Kitsap County
Planning Department. The Kitsap County Planning Department stated they are ready,
willing and able to process this application in a fair and impartial manner upon transfer
via stipulation, or Court Order - referring this matter to the Kitsap County Planning
Department. A COBI Planning Commissioner improperly made a recommendation to
deny only the Gerlachs' application and acted in violation of the Appearance of Fairness.
The MDNS decision appears to be an adoption of the COBI Planning Commissioner's
recommendation' and substantiates the plaintiffs' allegations as asserted in the Complaint
for Declaratory Relief. As this matter is properly before the Kitsap County Superior
Court for trial, on the appearance of Fairness violation, the MSDS and this appeal must
be postponed to avoid any decision, which could improperly affect the outcome of the
Kitsap County Superior Court action. The Hearing Examiner should suspend any action
until the Superior Court has resolved this matter.
' COBI Planning Commissioner Gale provided a detailed and specific recommendation to the COBI
Planning Department to deny this application, and only this application on October 15, 2012.
The applicants previously requested the COBI Planning Department to voluntarily
transfer the matter to the Kitsap County Planning Department for processing (Attached as
Exhibit 2 and Exhibit 3) following the Appearance of Fairness violation. As recent as
January 11, 2013, COBI was aware that the COBI Planning Commission/Commissioners
provided a valuable administrative role for the Planning Department. The Commissioner
compromised a fair and impartial review of the application when she commented on only
the Gerlachs' application. On February 14, 2013, the Gerlachs requested the COBI
Planning Department refrain from making any decision on this application so as to avoid
confusion or uncertainties with respect to competing jurisdictions and make incompatible
decisions. COBI elected to ignore this request and created this predicted dilemma.
In the event this matter is not referred to the Kitsap County Planning Department, please
find enclosed payment in the amount of $530.00 in order to appeal the denial of the
bulkhead and arbitrary and capricious restrictions on the dock and retaining wall included
in MDNS for SSDP 13500B dated March 22, 2013. The gatehouse was previously
permitted via the building plans under BLD 18048ADD on or about November 2, 2012.
The appellants contest the factual inaccuracies contained in the MDNS.
The MDNS was unsigned, but contained a signature line for Katherine Cook. A brief
summary of the grounds for the appeal includes the following: hnproper denial of the
bulkhead pursuant to state and local statutes /codes and case law; Improper denial of the
bulkhead based upon documents, reports and papers previously submitted to COBI;
Improper discrimination against only the Gerlachs because COBI previously permitted
hard -armor bulkheads; Inequitable imposition of 2 -year report lifespan condition against
applicants; Improper retaliation against the Gerlachs- in violation of COBI's written
obligations to treat applicants fairly and in good faith; Violation of the Appearance of
Fairness doctrine by COBI commissioners/ employees /staff; Improper restrictions on the
dock based upon documents, reports and papers previously submitted; Improper
restrictions on stability of float; Improper infringement on Americans with Disability
Act- if access to /from float is not adequately supported with the use of off -set gangway;
Improper restrictions on retaining wall based upon Federal and State Constitutions and
discrimination against the applicants including restriction that only apply to the
applicants. The appellants contest the arbitrary and capricious denial of the bulkhead,
improper restrictions to the dock and retaining wall. The gate house was previously
permitted under BLD 18048ADD on or about November 2, 2012. The appellants contest
the factual inaccuracies contained in the MDNS. This appeal incorporates by reference all
of the documents, notes, reports, photographs and evidence included in application SSDP
13500B as part of the basis for the appeal. The appellants request the appeal be granted.
The appellants request reversal of the denial and bulkhead, as well as elimination of
arbitrary and capricious restrictions on the dock and retaining wail.
52�talgyaArs-
Marcus Gerlach
Enc:
2 Letter to COBI dated February 14, 2013 attached as exhibit 4
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RECEIVE[) FOR FIl
KITSAp COUNTY CI
"AN 17 2013
DAVID W. pF•rrr,
SUPERIOR COURT OF WASHINGTON FOR KI TSAP COUNTY
MARCUS S. GERLACH and SUZANNE L. ) NO. 22 0 13 (J) 1
GERLACH as Husband and Wife )
Plaintiffs, ) COMPLAINT FOR
DECLARATORY RELIEF AND
V. ) ORDER OF VIOLATION OF
CITY OF BAINBRIDGE ISLAND, Municipal j APPEARANCE OF FAIRNESS
Corporation; and Does 1 -10 ) DOCTRINE (RCW 42.36 Et Seq.)
Defendants. 1
Plaintiffs, Marcus Gerlach and Suzanne Gerlach, plead the following:
1. PARTIES
1.1 The Plaintiffs
Plaintiffs Marcus S. Gerlach and Suzanne L. Gerlach (hereinafter referred to as
"Gerlachs ") are husband and wife. The Gerlachs' residence is located on Eagle Harbor,
Bainbridge Island, Washington.
MARCUS GERLACH.
COMPLAINT FOR DECLARATORY RELIEF - 1 of 12 579 STETSON PIACE
BAINBRIDGE ISLAND, WA 98110
(925)984 -9631
14 t
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1 1.2 The Defendants
2 Defendant City of Bainbridge Island (hereinafter referred to as `-GOBI ") has been
3 and is now a municipal corporation organized under the laws of the State of Washington.
4 COBI acts through its various departments and city employees, including its planning
5 department (hereinafter referred to as "PD "). COBI is authorized to control land use and
6 developments but is limited by its enabling statutes, its own ordinances, the laws of the
7 State of Washington, the constraints of the constitution of the State of Washington and the
8 United States Constitution. Douglas Schulze (hereinafter referred to as "Schulze "), acts as
9 the executive director of COB[ in the capacity of city manager and agent of GOBI. Joshua
10 Machen (hereinafter referred to as "Machen ") serves as the Current Planning Manager of
11 COBI's PD and is a named defendant in Gerlach v COBI, Machen United States District
12 Court, case no. CI1 -5854 BHS. (hereinafter "Litigation ")
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14 II. JURISDICTION AND VENUE
15 2.1 This court has jurisdiction over this matter pursuant to RCW 2.08.010, and
16 RCW 42.36.
17 2.2 Venue is proper in Kitsap County pursuant to RCW 36.01.050.
18 2.3 The Plaintiffs sought removal from COB[ to Kitsap County by stipulation,
19 but the Defendants refused to concede the obvious conflict and violations of the
20 Appearance of Fairness Doctrine. Kitsap County (Hereinafter "Kitsap ") is ready, willing
21 and able to serve as a neutral and unbiased review agent of the pending application.
22 Because of the nature of the causes of action pled, a waiting period is not required, or
23 applicable. Transfer of the pending shoreline substantial development (SSDP) application,
24 from COBI to Kitsap, may immediately commence upon issuance of this Court's Order.
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MARCUS GERLACH.
COMPLAINT FOR DECLARATORY RELIEF - 2 of 12 579 STETSON PI GE
BAINBRIDGE ISLAND, WA 98110
(925)984 -9631
1 III. STATEMENT OF FACTS
2 3.1 The Gerlachs own a parcel of property (hereinafter referred to as the
3 "Property "), on the Inner Harbor of Eagle Harbor. The property title includes rights
4 transferred from the State of Washington to the Gerlachs that include Second Class
5 Tidelands /Bedlands, out to the center of the Inner Harbor. Ownership of the Second Class
6 Tidelands /Bedlands is unique and allows the Gerlachs to install a bulkhead and dock on
7 their property without involvement from the Washington State Department of Natural
8 Resources.
9 3.2 Prior to filing the instant application to install a dock and bulkhead on the
10 Gerlachs' property (SSDP 13500), the Gerlachs tiled Litigation against COB] following a
I 1 contentious application for a mooring buoy On August 4, 2011, (after the Gerlachs were
12 forced to file four applications and were delayed approximately 6 years) GOBI finally
13 granted the Gerlachs a mooring buoy permit but not until after arbitrarily and capriciously
14 denying the Gerlachs' due process. The inordinate delay, alleged criminal acts by a GOBI
15 employee and unreasonable excuses for denying the Gerlachs' multiple mooring buoy
16 permits resulted in pending Litigation against Machen and COBI.
17 3.3 In the pending Litigation, the Gerlachs contend that Machen ran a private
18 window cleaning business, from behind COBI's planning department counter, soliciting
19 permit applicants. COBI was aware of the potential for criminal conduct and warned
20 Machen against committing acts of solicitation in COBI's February 24, 2003
21 Memorandum to Machen. Machen was specifically warned against conflicts of interest, as
22 this could lead to a violation of the Appearance of Fairness Doctrine. Machen apparently
23 disregarded this admonition. The Litigation alleged that Machen continued to solicit
24 business, including from the Gerlachs when their mooring buoy permit was pending and
25 the Gerlachs' refusal to hire Machen, resulting in disparate treatment of the Gerlachs'
26 mooring buoy application.
MARCUS GERLACH.
COMPLAINT FOR DECLARATORY RELIEF - 3 of 12 579 STETSON PLACE
BAINBRIDGE ISLAND, WA 98110
(925)984.9631
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3.4 On June 23, 2011, on the eve of the hearing to reverse COBI's denial of the
Gerlachs' mooring buoy application, COBI's City Attorney, Jack Johnson sought a quiet
settlement of the matter and provided the Gerlachs with assurance that a mooring buoy
permit would be issued by COBI without further incident. In the June 23, 2011 settlement
offer, COBI covenanted that it would not act in bad faith or with retaliation against the
Gerlachs regarding future permit applications. COBI's Jack Johnson acknowledged in
writing that "[T]he City has an obligation to treat the applications of the Gerlachs and
every other citizen in good faith..." COBI refused to include this language into the
contractual settlement terms, but did assert that the Gerlachs need not fear retaliation in
writing to the Gerlachs. The Gerlachs detrimentally relied upon the written statements of
COBI's City Attorney (June 23, 2011) when the Gerlachs tiled the instant SSDP
application (SSDP 13500), for a dock and bulkhead on July 31, 2012.
3.5 Previous to tiling the application SSDP 13500, the Gerlachs participated in
a pre- application meeting with Heather Beckmann, COBI's associate planner on January
10, 2012. Heather Beckmann (Hereinafter "Beckmann ") works in COBI's Current
Planning Department. COBI's Current Planning Department Manager is Machen, and
Beckmann works directly for Machen. Both Machen and Beckmann are supervised by
COBI's Planning Director, Kathy Cook (Hereinafter "Cook "). Cook, Beckmann and
Machen are aware of the Litigation and knew, or should have known about the covenant
entered into by COBI's City Attorney, Jack Johnson to treat the Gerlachs' applications in
good faith and without retaliation. Beckmann, Machen and Cook serve as COBI municipal
officers pursuant to RCW 42.23.020 (3). Municipal officers act on COBI's behalf and
with COBI's authority.
3,6 Beckmann required a recent (within the last two years) report describing
any vegetation on the Gerlachs' tidelands and a shoreline designation. The Gerlachs
complied with Beckmann's request, but pointed out to Beckmann on April 6, 2012 that
MARCUS GERLACH.
COMPLAINT FOR DECLARATORY RELIEF - 4 of 12 579 STETSON PI m
BAINBRIDGE ISLAND, WA 99110
(925)984 -9831
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COBI failed to follow its own mandatory 2 -year lifespan rule, when it _used a 2003
underwater survey to permit COBI 2011 Open Water Marina. Machen was the COBI
planner who permitted the 2011 COBI Open Water Marina with the outdated underwater
survey. The Gerlachs complied with Beckmann's requirement and provided COBI with
two reports from a qualified expert describing the surveyed conditions at the Gerlachs'
tidelands /shoreline /property. The expert reports were generated in 2012 and 2013. The
Gerlachs also provided Beckmann with a geological survey, which evidenced the need for
a protective bulkhead, as required by Beckmann.
3.7 COBI posted a legal notice of the Gerlachs' application for a dock and
bulkhead, and two other people, besides the Gerlachs, reviewed the SSDP tile. Despite
only two
other
people reviewing the file,
13 letters were sent
to COBI objecting
to
the
Gerlachs'
dock
and bulkhead application.
None of the Gerlachs
neighbors objected
to
the
application. The objections were from disgruntled parties, two of which were
anonymous /unsigned. Oddly, the anonymous comments contained highly detailed
information about COBI's review process, including knowledge of other reports generated
by the Gerlachs' expert in other COBI applications, which criticized the Gerlachs' experts.
The disgruntled parties sought to allege fallacious allegations against the Gerlachs. The
personal attacks against the Gerlachs and their application was a surprise to the Gerlachs as
they thought COBI would not retaliate against the Gerlachs in subsequent applications.
3.8 On December 7, 2012 the Gerlachs provided Beckmann with a response to
the false allegations and provided Beckmann with demonstrative evidence to support the
Gerlachs' contentions that the Property was eroding because of COBI's permitted waterski
course and COBI's permitting of rowing chase boats in the inner harbor. The evidence
rebutted the false allegations of commenting parties. The Gerlachs' noted that the
commenting parties only provided COBI with negative comments about the Gerlachs'
dock/bulkhead application and ignored similar applications on neighboring properties.
MARCUS GERLACH.
COMPLAINT FOR DECLARATORY RELIEF - 5 of 12 579 STETSON PLACE
BAINBRIDGE ISLAND, WA 98110
(925)984.9831
Ell
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Surprisingly, the same commenting parties, who vehemently objected to the Gerlachs'
A 2
application failed to provide any comments, or similar concerns, of pending applications
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on neighboring properties. For example, the same commenting parties failed to lodge any
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complaint on SSDP 12063C (for the construction of new pier, ramp, float). The same
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commenting parties also failed to lodge any complaint on SSDP 17481, which included a
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new pier, ramp, float electric boatlift and new mooring buoy on tidelands located directly
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across from the Gerlachs' property. COBI's Cook issued COBI's permit for SSDP 12063C
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on June 29, 2012. COBI's Cook issued COBI's permit for SSDP 17481 on December 3,
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2012. There is no reasonable explanation why only the Gerlachs' were forced to respond
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to false allegations and subjected to acts of gross bias, prejudice and retaliation.
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3.9 Previous to the Gerlachs' application to obtain a permit for a bulkhead
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COBI issued a bulkhead permit for a neighboring property. On May 19, 2004, COBI's
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PD issued a permit for the construction of a bulkhead on property that is three parcels
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away from the Gerlachs' property. Machen acted as COBI's associate planner when. COBI
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issued a permit for SSDE 12757. The bulkhead permitted by COBI in SSDE 12757 was
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seven feet tall. The Gerlachs' application was for a bulkhead that is only four feet tall. On
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December 18, 2012; December 21, 2012; January 4, 2013, January 11, 2013 the Gerlachs
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explained the similarities between the Gerlachs' application SSDP 13500 and the permitted
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neighboring bulkhead (SSDE 12757). COBI's Beckmann failed to recognize the obvious
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similarities between SSDP 13500 and SSDE 12757 and refused to treat the Gerlachs'
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application equally, despite an expert equating the two projects as nearly identical.
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3.10 The most egregious act by COBI's municipal officers was from a COBI
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Planning Commissioner. On October 15, 2012 COBI's Planning Commissioner, Maradel
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Gale, provided COBI with a written recommendation to deny only Gerlachs'
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application (SSDP 13500). Incredibly, COBI's Commissioner Gale did not comment on
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either SSDP 12063C, nor SSDP 17481. COBI's Commissioner clearly and obviously
MARCUS GERLACH.
COMPLAINT FOR DECLARATORY RELIEF - 6 of 12 579 STETSON Putt
BAIN9RIDGE ISLAND, WA 98110
(925)984 -9631
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violated the Appearance of Fairness Doctrine when she provided COBI's Beckmann with a
written recommendation to deny the application, while at the same time serving as COBI's
Commissioner. Commissioners must abstain from participation in the application and
decision - making process so as to prevent a violation of the public trust. During all relevant
times, COBI's Commissioner Gale acted a Municipal officer pursuant to RCW
42.23.020(1). While Commissioner Gale was simultaneously offering a recommendation
to COBI to deny only the Gerlachs' application (based upon specialized knowledge
obtained while serving as a Commissioner), she was also acting as COBI's Municipal
Officer. COBI's Commissioners are only supposed to provide general recommendations
regarding COBI's Shoreline Master Plan (SMP). COBI's Commissioners should never
direct their comments toward only one property owner, or single out only one property
owner. The SMP is approved by COBI's City Council and regulates all development
activities on COBI's shorelines.
3.11
On December 31, 2012,
the Gerlachs informed
COBI's Beckmann and
Cook of the
conflict of interest between
COBI's Commissioner
Gale and the Gerlachs'
pending application. Commissioner Gale's comments clearly violated the Appearance of
Fairness Doctrine and disqualified COBI from making any decision on the application.
3.12 On January 2, 2013, and January 14, 2013 the Gerlachs informed COBI's
City Manager, Schulze of the conflict of interest between COBI's Commissioner Gale and
the pending application, as Commissioner Gale's comments singled out only the Gerlachs'
application and violated the Appearance of Fairness Doctrine.
3.13 The Gerlachs sought review and enforcement of the pending permit
application via a transfer to a neutral and unbiased agency in order to receive a fair and
impartial assessment. COB[ is located in Kitsap County and Kitsap is the only other
agency with enforcement authority, besides COBI.
MARCUS GERLACH.
COMPLAINT FOR DECLARATORY RELIEF - 7 of 12 579 STETSON PIACE
BAINBRIDGE ISLAND, WA 98110
(925)984 -9831
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3.14 On January 11, 2013, via COBI's City Manager Schulze, COBI refused to
recognize the obvious violation of the Appearance of Fairness Doctrine and ignored the
actual conflict of interest. COBI failed to address the mandatory requirements in order to
avoid the appearance of impropriety, codified in RCW 42.36, necessitating this pleading.
3.15 The Appearance of Fairness Doctrine is a rule of law requiring government
decision - makers to conduct non -court proceedings in a way that is fair and unbiased in
both appearance and fact. This Doctrine was developed to insure that due process
protections extend to certain types of administrative decision- making hearings. The
Doctrine requires parties receive equal treatment and does not allow a party to be unfairly
singled out. COBI's municipal officers failed in all aspects to abide by the Appearance of
Fairness Doctrine with regard to the Gerlachs' application (SSDP13500) necessitating this
application be immediately transferred to Kitsap for a fair and impartial review.
IV. CAUSES OF ACTION
A. RCW CHAPTER 42.36
4.1 The Plaintiffs reallege all allegations referenced in Sections 1, 11, and 11 of
this Complaint, including all subparagraphs specified therein.
4.2 The Plaintiffs' have a right to a fair and impartial review of the application
13500, pursuant to RCW 42.36. The Defendants' actions described herein violate the
Appearance of Fairness Doctrine.
4.3 The Defendants knew, or should have reasonably known, that their actions
would violate the Appearance of Fairness Doctrine and would result in a violation of the
Gerlachs' due process rights.
4.4 The Defendants' actions amount to an actual conflict of interest and violate
the Plaintiffs' right to equal treatment.
MARCIIs GERLACH.
COMPLAINT FOR DECLARATORY RELIEF - 8 of 12 579 STETSON PUCE
BAINBRIDGE ISLAND, WA 98110
(925)984.9631
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4.5 The Defendants actions, as described herein, were without a rational basis
in violating the Gerlachs' due process and equal protection rights.
4.6 The Defendants' actions, described herein, were unreasonable, improper,
unlawful and in bad faith.
4.7 The Defendants' actions, described herein, constituted disparate treatment
toward the Gerlachs.
4.8 The Defendants knew their actions were unlawful and in excess of lawful
authority, or should have reasonably known, that the actions failed to avoid the appearance
of impropriety.
B, HAD FAITH
4.9 The Defendants, including all acting municipal officers, have a statutory
and common law duty of good faith and fair dealings.
4.10 The Defendants, including all municipal officers, breached their duty of
good faith and fair dealings in several ways, including but not limited to the failure to
avoid the appearance of impropriety. Additionally the Defendants, including all municipal
officers, unreasonably treated the Plaintiffs in an unequal manner and in a disparate
fashion.
4.11 The Defendants, including all municipal officers, placed their own personal
interest above their duty to treat the Plaintiffs with fairness and without bias.
4.12 The Plaintiffs suffered damages as a result of the Defendants' breach of the
duty of good faith and fair dealings.
4.13 The Plaintiffs are entitled to recover reasonable expenses and losses as the
court may deem just and appropriate as fully set forth in Section V, herein.
MARCUS GERLACH.
COMPLAINT FOR DECLARATORY RELIEF - 9 of 12 579 STETSON PUCE
BAINBRIOGE ISLAND, WA 98110
(925)984 -9831
f f
1 C. COBI'S COVENANT AGAINST RETALIATION
2 4.14 The Plaintiffs reassert all foregoing allegations as though fully set -forth
3 herein.
4 4.15 COBI's City Attorney, Jack Johnson, provided a written covenant that
5 COBI would not retaliate against the Plaintiffs and that COBI would treat the Gerlachs'
6 application in good faith.
7 4.16 The Gerlachs detrimentally relied upon the covenant of COBI's City
8 Attorney (E -Mail of June 23, 2011). The actions of the Defendants, including their
9 municipal officers, violated the covenant between COBI's City Attorney and the Gerlachs.
to 4.17 As a direct and proximate cause of COBI's breach of the covenant against
1 1 retaliation, the Gerlachs incurred damages.
12
13 D, DECLARATORY RELIEF
14 4.18 There is a dispute between the parties regarding the requirements of the
15 Appearance of Fairness Doctrine, specifically as to whether or not COBI's Commissioner
16 Gale appeared biased against only the Gerlachs' application when recommending denial to
17 COBI. There is also a dispute whether or not COBI breached the duty of good faith and
18 fair dealings, as well as whether or not COBI sought retaliation against the Gerlachs by
19 treating the Gerlachs in a dissimilar and disparate manner. This matter is the proper
20 subject of declaratory relief pursuant to RCW 7.24, or in the alternative a writ if
21 appropriate, pursuant RCW 7.16, as a land use decision should not be issued by COBI.
22 4.19 The Gerlachs are entitled to a declaration from this Court finding that the
23 COB[ violated the Appearance of Fairness Doctrine and breached the covenant of good
24 faith and fair dealings and that COBI retaliated against the Gerlachs,
25 4.20 The Plaintiffs are entitled to have their application reviewed and enforced
26 by a fair and unbiased entity and seek enforcement by Kitsap County, via RCW 19.27.050.
MARCUS GERLACH.
COMPLAINT FOR DECLARATORY RELIEF - 10 of 12 579 STETSON PUCE
BAINBRIDGE ISLAND, WA 98110
(925)984 -9631
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Kitsap is willing to assume enforcement control over this application upon Order of this
Court directing the transfer from COBI to Kitsap.
V, PRAYER FOR RELIEF
WHEREFORE, the Plaintiffs pray that this Court grant the following relief:
a. For a finding that COBI violated the Appearance of Fairness Doctrine.
b. For an Order that COBI violated COBI's covenant of good faith and fair
dealings and violated the covenant against retaliation.
C. That the Court enter an Order, or Writ, if appropriate, directing the removal
of the pending permit application from COBI and directing Kitsap County to review the
application based upon COBI's violation of the Appearance of Fairness Doctrine and
violation of the covenant of good faith and fair dealings,
d. Upon transfer of the permit application from COB] to Kitsap County, COBI
is Ordered to tender all permit fees paid, by the Plaintiffs to GOBI, to be transferred to
Kitsap County and COBI shall not retain any application fees.
C. The Plaintiffs request a judgment for reasonable expenses, attorney fees and
losses against the Defendants.
f. That the Court grant such other and further relief as is just and equitable.
DATED this of January, 2013.
Marcus Gerlach, WSB"A No. 33963
579 Stetson Place
Bainbridge Island, WA 98110
P: 925.984.9631
Msg2x4gi yahoo. com
MARCUS GERLACH.
COMPLAINT FOR DECLARATORY RELIEF - 11 of 12 579 STETSON PUCE
BAINBRIDGE ISLAND, WA 98110
(925)984 -9631
4:
t:
Marcus Gerlach, WSB"A No. 33963
579 Stetson Place
Bainbridge Island, WA 98110
P: 925.984.9631
Msg2x4gi yahoo. com
MARCUS GERLACH.
COMPLAINT FOR DECLARATORY RELIEF - 11 of 12 579 STETSON PUCE
BAINBRIDGE ISLAND, WA 98110
(925)984 -9631
MARCUS GERLACH
579 Stetson Place
Bainbridge Island, WA 98110
January 2, 2013
Doug Schulze, City Manager
City of Bainbridge Island
280 Madison Ave
Bainbridge Island, WA 98110
Hand- Delivered
RE: Congratulations on your manager position at the City of Bainbridge Island (COBI)
Dear Mr. Schulze:
I would like to extend my heartfelt congratulations on your recent appointment to the
position of City Manager with COBI. I, along with many other island residents, look
forward to your service on Bainbridge Island. Much like you, I am not a native islander,
but rather migrated to Bainbridge Island because of so many things the island offers. I
chose Bainbridge Island for the mild climate, community and natural beauty, which are
all very pleasant.
Unfortunately, not everything on Bainbridge Island is pleasant, as this is a relatively
young city (incorporated in 1993) and it still has significant growing pains. You
probably have been introduced to some of the challenges Bainbridge Island faces, by
other island residents. It is with regret that I must directly address one of these
unpleasantries with you and request your participation. I recently applied for a permit to
improve my shoreline. I was quite disappointed to find that a comment was offered by an
agent of COBI. Maradel Gale provided a comment to COBI's Planning Department on
October 15, 2012, while she was simultaneously serving as a COBI Planning Department
Commissioner. As a seasoned public servant, I likely do not need to stress the
importance that public servants, including all COBI's employees, agents, or
commissioners must seek to avoid the appearance of impropriety in matters before COBI,
including COBI's Planning Department. I am sure that you also understand that to retain
the public's trust, all efforts must be undertaken to avoid conflicts of interest. I expect
that you, as a knowledgeable City Manager, share my concern when Commissioner Gale
breached her duty of impartiality, and created an impermissible conflict of interest
regarding my shoreline application. Matters involving a conflict of interest are not easily
remedied once the actual conflict is committed, as in this case. Your predecessor was
dismissed following several alleged breaches of trust between COBI employees, as well
as members of the public. COBI cannot expect to re- establish the public's trust and
confidence when the appearance of fairness continues to be compromised. I believe that
Commissioner Gale violated my trust in COBI's impartiality when she interposed herself
in this matter thereby debasing normal professional standards, which required her recusal.
Any acts by the Commissioners of COBI's Planning Department, must be made after
careful deliberation, so as to avoid the imposition of discriminatory acts into official
matters and must be free of personal bias, or prejudice. Commissioner Gale is well -
aware of the need to appear fair and impartial in quasi-judicial matters, as she holds a
Juris Doctorate degree and likely received extensive training regarding matters involving
conflicts of interest. Even if Commissioner Gale never passed a state bar and was never
admitted to practice law, she is well -aware of the serious violation that was committed
when she provided a bias and prejudiced opinion regarding my shoreline application,
during her service as a COBI Commissioner. I shared some of my concerns with the
associate planner, but believe that you should also be aware of my doubts that COBI can
now act in a fair and impartial manner in the review and issuance of my shoreline
application, in light of Commissioner Gale's bias and prejudicial comment. (attached is a
copy of my December 31, 2012, letter to COBI Associate Planner Heather Beckmann)
I sought clarification regarding the ethical standards and requirements for COBI's
employees /agents/commissioners, in a records request dated, November 16, 2012.
COBI's paralegal was helpful in providing documents that pertained to COBI's manual
of City Governance and COBI Ethics Program, but surprisingly, none of the documents
addressed the particular issue at hand. I trust that you will remedy this problem by
instituting clear standards that will prohibit COBI's employees, agents, or commissioners
from engaging in any actions that are a conflict of interest or constitute an impropriety.
At the same time, I hope you will acknowledge that Commissioner Gale's public
comment amounts to an actual conflict of interest and an impermissible breach of trust
that violates any reasonable appearance of fairness regarding my shoreline application.
The actual conflict of interest requires immediate action. My previous requests to
COBI's Planning Director, to relinquish authority over my shoreline application were
ignored. (See copies of referenced letters December 18, 2012 and December, 2.1;2012,_
attached for your convenience.) I renew my request with you at this time to allow the
County to review, this shoreline application pursuant to 1tCW 19.127 ,050 and';provide and
unbiased and unprejudiced; decision regarding my shoreline application(SSDP 13500):
I would like to resolve this shoreline permit without litigation and request that you
participate in the immediate transfer of this pending shoreline permit to Kitsap County. I
additionally request that you indicate the proper method, or procedure, allowing me to
bring matters to your attention, which require executive involvement. Kindly direct me
to the applicable COBI document, referral sheet, or complaint form in order to raise
administrative issues that mandate involvement pertaining to personnel matters.
�ry truly yours,
Marcus Gerlach
Enc.
cc: Kathy Cook, COBI Director of Planning (without attachments)
Public Request # 14 in latter to COBI dated November 16, 2012
MARCUS GERLACII
579 Stetson Place
Bainbridge Island, WA 98110
January 14, 2013
Doug Sclmlzc, City Manager
City of Bainbridge Island
280 Madison Ave
Bainbridge Island, WA 98110
(land- Delivered
RL: Transfer of SSDP 13500 from City of Bainbridge Island (COBI)
Dear Mr. Schulze:
Thank you for providing your January 11, 2013 response to my request for transfer of the
above- relbrenced application to Kitsap County. Your assurance, that COBI will treat my
application fairly, does not resolve the Appearance of Fairness Doctrine violations.
COBI's Commissioner Maradel Gale is a Municipal Officer (See RC W 42.23.020(1).
One municipal officer directing another municipal officer (I leather Beckmann) to deny a
COBI application based upon Commissioner Gale's specialized knowledge is bias and
unfair. Commissioner Gale's comments (new term expires 12 /31 /151yiolated the
Appearance of Fairness Doctrine (see'Hoy&n v Port Townsend'28 Wn: App 192 ('19.81))!
COBI is violating the public's trust, as the Commission did in 11a.vden v Port '1'nuvsend.
COBI is still unable to distinguish any recognizable difference between my permit and
SSDE 12757, SSDP 12063C and SSDP 17481. The delay in issuing my permit is
unwarranted. Please issue my permit without delay, or,transf'er it-lo KJitsap County'.
I will be forced to pursue litigation if COB] is unwilling to remedy the violation of the
Appearance of Fairness Doctrine before making a permit decision. In 2011, a hearing on
the Appearance of Fairness Doctrine cost COBI its past hearing examiner (Klockars).
Pending litigation against COBI may have unforeseen consequences. Please seek legal
advice to avoid mistakes in the pending permit application, before making any decisions.
1 would like to assist you in your efforts to resolve some of the problems you have
unfairly inherited. Please direct me to the applicable COBI document, referral sheet, or
complaint form in order to raise administrative issues that require prompt resolution.
vepnrUly� yours,
> f
/ r
Marcus Gerlach
cc: Kathy Cook, COBI Director of Planning
�;6i% 3
MARCUS GERLACH
579 Stetson Place
Bainbridge Island, WA 98110
February 14, 2013
Heather Beckmann, Associate Planner
City of Bainbridge Island
280 Madison Ave Via E -Mail
Bainbridge Island, WA 98110
RE: City of Bainbridge Island (COBI) Permit Application SSDP 13500
Dear Heather:
On February 6, 2013, I provided COBI with correspondence requesting an explanation
why COBI refused to recognize my expert, which COBI specifically requested, and I
provided at my sole expense. COBI failed to provide any response.
On February 6, 2013, I also requested COBI distinguish my application SSDP13500,
from the bulkhead COB] permitted, three parcels away at 427 Lovell Avenue, in SSDE
12757. COBI ignored the request and failed to provide any response.
Instead of providing any meaningful responses to my requests regarding my expert,
COBI elected to engage the Washington State Department of Ecology (Ecology) to assist
with the administration of this application. This intentional action was COBI's attempt to
thwart COBI enacted Shoreline Management/Master Plan (SMP) and to supplant the
SMP with terms used by Ecology.' The thinly- veiled attempt to have Ecology re -write
COBI's SMP with a new term was impermissible. "Once an SMP has been approved, the
SMA specifically grants local governments the exclusive power to administer the permit
system. RCW 90.58.140(3). Nowhere in the statute is Ecology explicitly given the right
to directly review a local government's decision regarding a substantial development
permit." Samuel `s Furniture Inc v State Dept of Ecology 147 Wn.2d 440,455 (2002).
COBI impermissibly delayed the issuance of my permit by insisting on a review by
Ecology. COBI's attempt to involve Ecology was an improper delegation of the already
existing SMP and amounted to bad faith by COBI in the permit review process. My
expert was qualified to assess my shoreline and designate the property. My expert did
not designate my property as a marsh (SMP term), or a wetland (SMP term). If Ecology
attempts to improperly interject itself into this application, I will seek clarification from
Ecology why it did not also interject itself into SSDE12757, as well as, the Island
Gateway project, 2 COBI's improper delay has resulted in damages,
' Ecology created a new term, salt marsh, which in not included in the SMP and is not defined in the SMP.
2 COBI improperly permitted Island Gateway, as it was within 200 It of the protected ravine, and Ecology
allowed the violation See COBI's Planning Directormemo of January 21, 2010.
�ti,d,t y
It appears COBI is unable to explain why my expert should be ignored. It is also obvious
COBI is unwilling to distinguish my application from SSDE 12757. This inability to
explain why my expert is unqualified, or why COBI is unwilling to distinguish my
application from SSDE 12757 is troubling and has resulted in an unnecessary delay.
It is also disconcerting that COBI, via Kathy Cook and Doug Schulze, failed to recognize
the obvious violation of the Appearance of Fairness doctrine when COBI's Planning
Commissioner provided written comment on the above - referenced pending application.
When COBI received the October 15, 2012 correspondence from COBI's Commissioner,
Maradel Gale, COBI should have immediately transferred the file to Kitsap County for
processing in order to avoid any appearance of unfairness. COBI was on actual notice of
the Appearance of Fairness violation on October 15, 2012. It was not until this violation
was raised by the applicants that COBI sought to dismiss the issue without any analvsis.
Even after providing COBI with compelling case law and a request that COBI obtain
legal counsel on January 14, 2013, COBI failed to provide any meaningful response to
the Appearance of Fairness violation. The Appearance of Fairness doctrine is intended to
avoid evil participation in the decision - making process. Under the Appearance of
Fairness doctrine, it is not necessary to show a decision maker's bias actually affected the
outcome, but that it could. COBI's Commissioner Gale, did lobby to deny my permit.
It is only because COBI failed to acknowledge the Appearance of Fairness violation that
the complaint for declaratory relief was required. COBI is already embroiled in litigation
regarding the improper delay of a mooring buoy. COBI's failure to transfer this
application to Kitsap County for permit processing will result in additional litigation.
Pursuant to existing case law, COBI's Planning Commissioner, Maradel Gale, is not
permitted to lobby for the denial of an application, particularly in a disparate manner.
Without any reply to my January 14, 2013 letter, I was forced to seek a Court order to
transfer this application to Kitsap County for permit processing. As COBI was served
with the attached complaint for declaratory relief today, there is no reason to issue any
decision. A decision<followmg service of thoscomplaintwould amount to. usurpation of
the kitcan r..minty Sunerior Court_ Anv decision omthe nernuft 6v C-0 13IL afteaaelviee of'+
ad cause further delay. The failure to stipulate to
n will result in additional expenses to COBI.
Very to ours,
Marcus Gerlach
Enc. Complaint for Declaratory Relief
cc; Kathy Cook, COBI Director of Planning
Douglas Schulze, COBI City Manager
MARCUS S.'GERLACH 1134
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MISCELLANEOUS PAYMENT RECPi #: 436429
CITY OF BAINBRIDGE ISLAND
280 MADISON AVE N
BAINBRIDGE ISLAND WA 98110
DATE: 03/28/13 TIME: 02:40
CLERK: llant DEPT:
CUSTOMER #: 0
COMMENT:
CHO: APPEAL APPEALS 530.010
AMOUNT PAID: 530.00
PAID BY: GERLACH, MARCUS
PAYMENT METH: CHECK
1134
REFERENCE: APPEAL
ANT TENDERED: 530.00
ANT APPLIED: 530,00
CHANGE: 100
SET 17 CPI
CITY OF BAINBRIDGE ISLAND FIN
MISCELLANEOUS CASH RECEIPTS
Date / Time : 03/28/13 08:40
Payment : 6 530.00
Receipt # : 436424
Check/Credit Card #: 1134
Clerk : pant
Paid By : GERLACH, MARCUS