GERLACH HEX PRE-HEARING ORDEROctober 16, 2017
CITY OF BAINBRIDGE ISLAND, WASHINGTON
HEARING EXAMINER
PREHEARING ORDER AND NOTICE OF HEARING
Project: Gerlach SEPA and Shoreline Permit Appeals
File number: SSDP13500
Appellants: Marcus and Suzanne Gerlach
Location: 579 Stetson Place
1. Marcus and Suzanne Gerlach have appealed portions of a decision of the City's Director of
Planning and Community Development dated March 22, 2013, denying an application to construct a
bulkhead and imposing certain conditions on approval of a boathouse, retaining wall and dock. At the
request of the appellants, their appeal to the Hearing Examiner was stayed pursuant to an order issued
June 13, 2013, pending resolution of a related lawsuit (Kitsap Superior Court case no. 13- 2- 00136 -7)
and its subsequent appeals challenging the City's jurisdiction to continue its review of the Gerlachs'
application. These court actions have now been concluded and the matter returned to the City for
further processing.
2. A prehearing conference was held by the Hearing Examiner on September 21, 2017, at which
time the appellants were represented by Mr. Gerlach and the City by attorney James Haney. Issuance
of this preheating order was deferred until the parties had mutually agreed upon a hearing date.
3. The City's March 22, 2013, Mitigated Determination of Non - significance (MDNS) and
administrative permit decision that are the subject of this appeal were predicated on a Planning
Department staff report dated March 13, 2013, that summarized the Department's analysis of the
Gerlach application, provided required regulatory findings and stated the conditions applicable to those
portions of the project receiving approval. Based on the Director's decision, the staff report and the
appellants' appeal statements, the following are the issues raised by the appeal:
A. Does MDNS condition no. 6 apply only to future materials stockpiles to be created
during the process of construction pursuant to the shoreline permit issued in this proceeding, or
does this condition apply as well to stockpiles that were already in existence on the beach at the
time of permit application?
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B. Are any or all of project conditions nos. 11, 12, 13, 14, 18 and 20 necessary to mitigate
the impacts of appellants' proposed development pursuant to the City's shoreline permit
approval? Are such conditions supported by relevant adopted City policies and regulations?
Have the requirements of any of these conditions already been satisfied by the appellants?
C. Did the Kitsap Superior Court decision in case no. 13 -2- 00136 -7, or its subsequent
review by Division II of the Court of Appeals in case no. 45571 -4 -II, conclusively determine
anything more than that the appellants had failed to exhaust administrative remedies prior to
filing their lawsuit?
D. Did City staff and /or Planning Commission members violate the State's Appearance of
Fairness Doctrine in the course of their reviews of the appellants' shoreline permit application?
E. Did the City in its review of the appellants' shoreline permit application violate a
covenant of good faith issued to the appellants on June 23, 2011?
F. Did the City's decision in approving the Rockaway Beach Stabilization project under
authority of file no. SCUP18545 create either a legally binding or logically compelling
precedent supporting approval of the appellants' bulkhead application?
G. Should the appellants' property subject to this proceeding be characterized as a marsh
shoreline environment for regulatory purposes?
H. Is the shoreline area on the appellants' property subject to a threat of serious wave
erosion?
The menu of questions listed above is designed, inter alia, to accurately summarize the issues as they
were raised by the appellants. The listing of an issue does not imply a ruling has been made either that
such issue actually lies within the Examiner's review jurisdiction or was not conclusively determined
within the earlier related Kitsap Superior Court case and its subsequent appeals.
4. The City's current Shoreline Master Program went into effect on July 30, 2014, but the Gerlach
application is vested to a now- repealed prior version of the SMP as it existed when the application was
submitted. City staff has committed to providing the parties and Examiner with an electronic link to
this earlier version of the SMP. The SEPA element of the appeal, comprising the challenge to MDNS
condition no. 6, is subject to the special rules applicable to the review of SEPA appeals, including WAC
197- 11- 680(3)(a)(viii), which requires within an administrative appeal of a threshold termination that
"[a]gencies shall provide that procedural determinations made by the responsible official shall be
entitled to substantial weight."
5. No
discovery
has been
authorized for this proceeding.
The following deadlines apply to the
procedures
described
below:
• November 17, 2017. Deadline for City staff to provide to the parties and Examiner an
electronic link to the City's Shoreline Master Program as it existed on the date the appellants
submitted a complete permit application. Deadline for parties to submit any preheating
motions; provided that, no diapositive motions will be entertained nor motions seeking to
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reconsider rulings previously made at the prehearing conference.
• January 10, 2018. Deadline for the parties to exchange with one another witness and exhibit
lists.
• January 17, 2018. Deadline
issues, the legal effect on this
Examiner's jurisdiction to entert
questions of legal interpretation.
of the hearing.
for submitting pre- hearing briefs on Appearance of Fairness
proceeding generally of prior related court decisions, the
am equitable claims and any other matters mainly involving
Briefing on all other issues may be submitted at the opening
6. The open record hearing on the appeal is scheduled to open at the following time and place:
Council Chambers
Bainbridge Island City Hall
200 Madison Ave. N.
Bainbridge Island, WA 98110
January 24, 2018
9:00 AM
7. The order of presentation at the public hearing will be as follows:
A. Introduction of staff file exhibits.
B. Appellant testimony.
C. Staff testimony.
D. Rebuttal testimony in order of initial presentation.
E. Summation in order of initial presentation.
8. Regarding exhibits to be offered
at the
hearing,
the
parties should bring an
original to be
submitted to the hearing record plus one
copy
each for
the
opposing party and the
Examiner.
ORDERED October 16, 2017
8%fford L. Smith, Hearin
City of Bainbridge Island
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