LETTER TO HEX - COBICITY OF
BAiNBRIDGE
ISLAND
April 6, 2016
Stafford Smith, Hearing Examiner
City of Bainbridge Island
280 Madison Avenue N.,
Bainbridge Island, WA 98110
Re: Gerlach Appeal of Shoreline Substantial Development Permit Number 13500
Dear Mr. Hearing Examiner:
In 2013, Mr. Gerlach appealed the referenced shoreline substantial development permit ( "SSDP ")
decision of the Community Development Director. Prior to the administrative appeal hearing, Mr.
Gerlach filed in Kitsap County Superior Court a declaratory judgment action and sought damages
relating to the City's processing of the referenced permit. You issued a stay of proceedings
pending the resolution of the litigation. That litigation is now concluded, and the City requests
lifting of the 2013 stay so that the administrative appeal on the referenced SSDP can be scheduled
and completed. The procedural history of the litigation between 2013 and the present follows:
In 2013, prior to the conduct of the administrative appeal of the referenced SSDP, Mr.
Gerlach filed in Kitsap County Superior Court an action seeking a declaratory judgment
that the City of Bainbridge Island Community Development Director's decision on the
subject SSDP violated the appearance of fairness doctrine; Mr. Gerlach also sought
damages.
• On September 5, 2013, the Kitsap County Superior Court issued an order on summary
judgment in favor of the City dismissing all of the plaintiffs' claims.
Plaintiffs appealed that judgment to the Washington State Court of Appeals, Division II.
On December 16, 2014, the Court of Appeals upheld the trial court's dismissal of the
Gerlachs' lawsuit on the basis that the appearance of fairness doctrine does not apply to
the Community Development Director's decision on shoreline substantial development
permits.
• On January 12, 2015, Plaintiffs filed a motion for discretionary review with the Washington
State Supreme Court. On April 29, 2015 the Supreme Court denied discretionary review.
280 Madison Avenue North
Bainbridge Island, Washington 98110 -1812
www- ba i n b r i dgewa.g ov
206.842.7633
CITY OF
BAINBRIDGE
ISLAND
• On May 29, 2015, the Kitsap County Superior Court, on Plaintiffs' motion, dismissed the
Superior Court litigation.
On June 22, 2015, the Washington State Court of Appeals, Division II, issued a Mandate
that (1) the December 16, 2014 decision of the Court of Appeals, Division II, terminated
review effective April 29, 2015; (2) the case is remanded to the Kitsap County Superior
Court for further proceedings; and (2) Plaintiffs must pay defendant City of Bainbridge
Island $205.44 in attorneys' fees.
Because the Washington State Court of Appeals issued a Mandate that the December 16, 2014
decision of the Court of Appeals, Division II terminated review and because Plaintiffs moved for
and obtained voluntary dismissal of their claims in Kitsap County Superior Court, the litigation is
now concluded and the underlying administrative appeal can be completed. Due to the protracted
procedural history of this matter and in order to understand whether Mr. Gerlach intends to proceed
with the administrative appeal he requested three years ago, the City requests a Pre - hearing
conference be scheduled prior to scheduling a hearing date.
Attached for your review are (1) the Kitsap County Superior Court's September 5, 2013
Memorandum and Order Denying Plaintiffs Motion for Summary Judgment; (2) Kitsap County
Superior Court's October 9, 2013 Order Denying Motion for reconsideration; (3) the Court of
Appeals, Division II Unpublished Opinion dated December 16, 2014; (4) the Washington State
Supreme Court's April 29, 2015 Order denying discretionary Review; (5) the Kitsap County
Superior Court's May 29, 2015 Dismissal without Prejudice; and (6) the Court of Appeals,
Division II Mandate.
Th 0
Lisa Marshall, City Attorney
Cc: James Haney, Ogden Murphy Wallace P.L.L.0
Gary Christiansen, Director of Community Development
Heather Beckman, Senior Planner
280 Madison Avenue North
Bainbridge Island, Washington- 98110 -1812
,v).ba inbridcjewa,gov
206.842.7633
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
27
28
29
30
p v� D
.n SEP - 9 jog
OLDEN MURPHY WAL1 P.L.1- C.
/3023. OSo, o(2 /
RECEIVED FOR FILING
KITSAP COUNTY CLERK
SEP -- 5 20113
DAVID W. PETERSON
SUPERIOR COURT OF WASHINGTON
IN AND FOR KITSAP COUNTY
MARCUS GERLACH and SUZANNE L.
GERLACH, husband and wife,
Plaintiffs,
VS.
CITY OF BAINBRIDGE ISLAND, a
Municipal Corporation, et, al.,
Defendants.
NO. 13 -2- 00136 -7
MEMORANDUM AND ORDER DENYING
PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND DISMISSING CASE
* *clerk's action required **
THIS MATTER comes before the Court upon Plaintiff's Motion for Summary
Judgment ( "Motion "), filed May 15, 2013. Defendant City of Bainbridge Island ( "Defendant ")
has requested that summary judgment be granted in favor of Defendant, and that the case be
dismissed; or, alternatively, that summary judgment be denied. On June 14, 2013, the Court
heard oral argument from Plaintiff and Defendant, and took the matter under advisement.
In addition to the June 14 oral argument, the Court has considered the following written
materials in making the present decision:
1. Plaintiff's Motion for Summary Judgment;
2. All declarations attached to the Motion;
3. Defendant's Response to the Motion for Summary Judgment;
4. All declarations attached to the Response;
5. Plaintiff's Reply to the Motion for Summary Judgment;
6. The supplemental declaration of Marcus Gerlach attached to the Reply;
MEMORANDUM AND ORDER ON MOTION FOR SUMMARY KITSAP COUNTY SUPERIOR COURT
JUDGMENT 1 614 Division Street
Poet Orchard, WA 98366
(360) 337 -7140
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
27
28
29
30
7. Defendant's supplemental argument on the Hearing Examiner's scheduling order; and
8. Plaintiff s supplemental briefing on the Hearing examiner's scheduling order.
DISCUSSION
Summary judgment is appropriate only if "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law, "' All facts and reasonable inferences therefrom are construed in the light most favorable
to the nonmoving party.2 The burden initially is upon the moving party to show an absence of
material fact. After the moving party has met its initial burden, the inquiry shifts to the
nonmoving party to set forth facts that show there is a genuine issue for trial.3
1. Exhaustion of remedies
Where a party seeks declaratory relief, it must show that its remedies have been
exhausted in order to establish standing to raise the issue.4 However, "the court will not require a
party to exhaust its remedies if to do so is shown to be futile." 5 Plaintiffs seek as relief transfer of
their permit application from the Defendant to Kitsap County; in other words, Plaintiffs request
that this Court interrupt the current and pending permit review process and transplant it to
another jurisdiction. Essentially, Plaintiffs request as relief access to "fair process." But Plaintiffs
already have access to such remedy via their pending appeal with the Hearing Examiner,
Plaintiffs present no argument that the hearing in front of the Hearing Examiner has been tainted
by the appearance of impropriety or otherwise. Plaintiffs have provided no other evidence that
such appeal is futile. Thus, this Court finds that Plaintiffs have not exhausted their administrative
remedies and this Court does not have jurisdiction to determine the pending matter.
CR 56(c).
2 Vullunefighrrrn v. C"laver• Par•k.Tch, !71st. No. 400, 154 Wild 16, 26, 109 P.3d 805 (2005).
3 Young V. Key Phm•rrr., Ine., 112 Wn.2d 216, 225, 770 P.2d 189 (1989).
° llu +�irrgtnn v. Spolume Cour+ry, 128 Wn. App. 202, 210, 114 11.3d 1233 (2005).
s Hen-r•lcrgion at 215.
MEMORANDUM AND ORDER ON MOTION FOR SUMMARY KITSAP COUNTY SUPERIOR COURT
JUDGMENT 2 614 Division Street
Port Orchard, WA 98366
(360) 337 -7140
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
27
28
29
30
2. Appearance of fairness doctrine
Alternatively, had the Court retained jurisdiction at this point, Plaintiffs' complaints once
again would have been stymied, as the Appearances of Fairness Doctrine does not apply to the
facts at bar. The Appearance of Fairness Doctrine was first articulated in Smith v. Skagit County,
which held that
public hearings ... must not only be fairly undertaken in a genuine effort to
ascertain the wiser legislative course to pursue, but must also appear to be done
for that purpose. In short, when the law which calls for public hearings gives the
public not only the right to attend but the right to be heard as well, the hearings
must not only be fair but must Appear to be so. It is a situation where appearances
are quite as important as substance.
The purpose of the doctrine is "to provide a due - process type standard for statutorily required
hearings of the legislative body acting in a quasi-judicial capacity. "6 Limitations were codified in
1981 in RCW 42.36, et. seq.
The appearance of fairness doctrine has never been applied to administrative action
except where a public hearing was required by statute.' For local land use decisions, the
application of the appearance of fairness doctrine is limited to quasi-judicial actions of local
decisionmaking bodies that determine the legal rights, duties, or privileges of specific parties in
a hearing or contested case proceeding.8 The Bainbridge Island City Code sets forth the
administrative process used to review and issue Shoreline SSDP applications. BIMC
16.12.360.E.4 establishes that, after the requisite 30 -day public comment period, the City
Director of Planning ( "Planning Director ") shall issue a decision on a pending permit
application. Prior to issuing a decision, the Planning Director may refer the issue to the Planning
Commission for recommendations.9 After the Planning Director issues a written decision, the
applicant may appeal to the hearing examiner.10An open record hearing is conducted as part of
the appeal only.11 Plaintiffs do not offer a satisfactory argument, in conjunction with applicable
6 Polygon Corp. v. Seattle, 90 Wn2d 59, 67, 578 P.2d 1309 (1978).
7 Polygon Corp. 90 Wn.2d at 67-68 (appearance of fairness doctrine not applicable to building permit application
process).
8 Families c A•laywo v. City of Spokane, 172 Wn. App. 727, 744 -745, 291 P.3d 930 (2013) (citations omitted).
9 BIMC 16.12.30O.P.A.£
10 BIMC 16.12.370.
' � BIMC 16.12.370.
MEMORANDUM AND ORDER ON MOTION FOR SUMMARY KITSAP COUNTY SUPERIOR COURT
JUDGMENT 3 614 Division Street
Port Orchard, WA 98366
(360) 337 -7140
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
27
28
29
30
authority, to support application of the doctrine to the planning director's decision in the instant
case, and the Court would decline to extend such an application.
Despite this, the Court notes the troubling character of the letter to Defendant, written by
Planning Commissioner Gale. Whether or not the appearance of fairness doctrine applies in this
case, such a letter written under the auspices of an official — and potentially influential — role
bears this Court pause.
CONCLUSION
Because Plaintiffs have not exhausted their administrative remedies and, consequently,
the Court does not have jurisdiction in this case.
It is hereby
ORDERED that Plaintiffs Motion is DENIED and that Defendant's request for
summary judgment is GRANTED. The case is hereby DISMISSED without prejudice.
Dated: This 9 -V'A day of 2 013.
H&N, JEANETTE DALTON
JUDGE
MEMORANDUM AND ORDER ON MOTION FOR SUMMARY
JUDGMENT 4
KITSAP COUNTY SUPERIOR COURT
614 Division Street
Port Orchard, WA 98366
(360) 337 -7140
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
27
28
29
30
CERTIFICATE OF SERVICE
I, Gemma N. Zanowski, certify under penalty of perjury under the laws of the State of
Washington that I am now and at all times herein mentioned, a resident of the State of
Washington, over the age of eighteen years, not a party to or interested in the above entitled
action, and competent to be a witness herein.
On q I5 I caused a copy of the foregoing document to be served in the
manner noted on the following:
James E. Haney
Ogden Murphy Wallace, P.L.L.C,
901 5th Ave Ste 3500
Seattle, WA 98164 -2008
Marcus Gerlach
Suzanne Gerlach
579 Stetson Place
Bainbridge Island, WA 98110
Via U.S. Mail
Via Fax:
Via Hand Delivery
Via E -mail:
Via U.S. Mail
Via Fax:
Via Hand Delivery
Via E -mail:
DATED 5eMnl at Port Orchard, Washington.
--
1
Gemma N. Zanowski
Judicial Law Clerk
Kitsap County Superior Court
MEMORANDUM AND ORDER ON MOTION FOR SUMMARY
JUDGMENT 5
KiTSAP COUNTY SUPERIOR COURT
614 Division Street
Port Orchard, WA 98366
(360) 337 -7140
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
27
28
29
30
n1�OCT - 9 2013
OGDEN MURPHY WALLACE P.L.L.0
/30y 3. 0 50 of') % i
gtrz -lvet) +'()N f
101'8Af'CO..,1Ai)'V
OCT na
DAVID W PETERSON
SUPERIOR COURT OF WASHINGTON
IN AND FOR KITSAP COUNTY
MARCUS GERLACH and SUZANNE L.
GERLACH, husband and wife,
Plaintiffs,
VS.
CITY OF BAINBRIDGE ISLAND, a
Municipal Corporation, et. al.,
Defendants.
NO. 13 -2- 00136 -7
ORDER DENYING MOTION FOR
RECONSIDERATION
* *clerk's action required **
THIS MATTER comes before the Court upon Plaintiffs' Motion Reconsideration, filed
September 16, 2013, Plaintiffs request that the Court reconsider its September 5, 2013
Memorandum and Order Denying Plaintiffs' Motion for Summary Judgment and Dismissing
Case.
In considering the Motion for Reconsideration, the Court has reviewed the file and
records therein. The Court has concluded that the Motion states insufficient basis for
reconsideration under CR 59.
It is hereby
ORDERED that Plaintiffs' Motion for Reconsideration is DENIED. The hearing
scheduled for October 11, 2013 has been STRICKEN.
Dated: This 7 day of October, 2013.
HON, k rTTE DALTON
JUDO
ORDER DENYING RECONSIDERATION 1
HON. JEANETTE DALTON
KITSAP COUNTY SUPERIOR COURT
614 Division Street
Port Orchard, WA 98366
(360) 337 -7140
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
27
28
29
30
CERTIFICATE OF SERVICE
I, Gemma N. Zanowski, certify under penalty of perjury under the laws of the State of
Washington that I am now and at all times herein mentioned, a resident of the State of
Washington, over the age of eighteen years, not a party to or interested in the above entitled
action, and competent to be a witness herein.
On i D, 2).'ZD �3 1 caused a copy of the foregoing document to be served in the
manner noted on the following:
James E. Haney
Ogden Murphy Wallace, P.L.L.C,
901 5th Ave Ste 3500
Seattle, WA 98164 -2008
iV)oae 0 C)MwlCkW.0o,Yyi
�vlarcus erlach T
Suzanne Gerlach
579 Stetson Place
Bainbridge Island, WA 98110
Ms 2xL4 0. 1A A60.0c)fyL
Via U.S. Mail
Via E -mail:
Via Fax:
F] Via Hand Delivery
Via E -mail:
Via U.S. Mail
F-1 Via Fax:
F] Via
DATED t + Y 2, 2D31, at Port Orchard, Washington.
ORDER DENYING RECONSIDERATION 2
Gemma N. Zanowski
Judicial Law Clerk
Kitsap County Superior Court
HON. RANETTE DALTON
KITSAP COUNTY SUPERIOR COURT
614 Division Street
Port Orchard, WA 98366
(360) 337 -7140
Hand Delivery
DATED t + Y 2, 2D31, at Port Orchard, Washington.
ORDER DENYING RECONSIDERATION 2
Gemma N. Zanowski
Judicial Law Clerk
Kitsap County Superior Court
HON. RANETTE DALTON
KITSAP COUNTY SUPERIOR COURT
614 Division Street
Port Orchard, WA 98366
(360) 337 -7140
IN THE COURT OF APPEALS OF THE STATE OF W
DIVISION
MARCUS GERLACH and SUZANNE L.
GERLACH, husband and wife,
Appellants,
V.
CITY OF BAINBRIDGE ISLAND, a
municipal corporation and DOES 1 -10,
No. 45'
FILED
COURT OF APPEALS,
DIViSIC1N II
1131 DEC 16 Aff 8: '
UNPUBLISHED OPINION
LEE, J. — Marcus and Suzanne Gerlach appeal the trial court's order dismissing the
Gerlachs' declaratory judgment action against the city of Bainbridge Island (the City). Because
the appearance of fairness doctrine does not apply to decisions made by the "City Planning
Department," there is no legal basis for the Gerlachs' claims, and the trial court properly dismissed
their declaratory judgment action.. We affirm.
FACTS
The Gerlachs' history with the City began in 2005, when the Gerlachs applied for a permit
to install a mooring buoy. The Gerlachs withdrew their permit request several months later. In
2010, the Gerlachs filed another permit application for a mooring buoy. This permit application
was denied. After the permit was denied, the Gerlachs appealed and made numerous allegations
of misconduct by members of the City Planning Department. The Gerlachs also filed a federal
lawsuit against the City for violation of their civil rights.
No. 45571 -4 -II
The City negotiated a settlement with the Gerlachs regarding the permit application.
Ultimately, the Gerlachs obtained a permit for a mooring buoy. The Gerlachs continued their
federal litigation, but the U.S. District Court dismissed their civil rights claims.
In 2012, the Gerlachs filed a shoreline substantial development permit (SSDP) application
to build a dock, a gate house, a boat hoist, a retaining wall, and a hard - armored (concrete) bulkhead.
During the permit review process, the Gerlachs made numerous allegations of unfair treatment by
the City Planning Department. Before the City Planning Department issued a decision on their
SSDP application, the Gerlachs filed an action for declaratory relief in Kitsap County Superior
Court. The Gerlachs requested that the trial court issue a declaratory judgment finding that the
City Planning Department violated the appearance of fairness doctrine by considering their SSDP
application. The Gerlachs requested that the trial court order the City to transfer their SSDP
application to Kitsap County for review and approval.
Before the City filed an answer to the Gerlachs' complaint for declaratory relief, the City
Planning Department 'issued its decision on the Gerlachs' SSDP application. The City Planning
Department granted a permit for the dock, gatehouse, and retaining wall but denied the permit to
build a concrete bulkhead. The Gerlachs appealed the City Planning Department's decision to the
city hearing examiner. The Gerlachs' administrative appeal is stayed pending the outcome of this
litigation.
The City filed an answer to the Gerlachs' complaint for declaratory relief and requested
that the case be dismissed. The Gerlachs then filed a motion for summary judgment. In response,
the City requested that summary judgment be granted in favor of the City as a nonmoving party.
The City argued that, as a matter of law, the Gerlachs' action must be dismissed because (1) the
K
No. 45571 -4 -II
Gerlachs had completely adequate alternative remedies, and (2) the appearance of fairness doctrine
did not apply to the initial consideration of an SSDP application by the City Planning Department.
The trial court agreed with the City, granted summary judgment in the City's favor, and dismissed
the Gerlachs' declaratory judgment action. The Gerlachs filed a motion for reconsideration, which
the trial court denied. The Gerlachs appeal.
ANALYSIS
Due to the contentious nature of this case and the Gerlachs' insistence on arguing the
underlying substantive nature of their allegations against the City, it is important to be clear about
what question is before this court. The dispositive question is whether the Gerlachs met the
prerequisite for filing a declaratory judgment action by demonstrating that the appearance of
fairness doctrine applies to decisions made by the City Planning Department. As explained below,
the trial court properly determined that the appearance of fairness doctrine does not apply to the
initial consideration of the Gerlachs' SSDP application by the City Planning Department.
Therefore, there is no legal basis to provide the Gerlachs with relief, and the trial court properly
dismissed the Gerlachs' declaratory judgment claim.I
We review the trial court's order on summary judgment in a declaratory judgment action
de novo. Internet Cmty. & Entm't Corp. v. Wash. State Gambling Comm'n, 169 Wn.2d 687, 691,
238 P.3d 1163 (2010). Summary judgment is appropriate if, when viewing the facts in the light
most favorable to the nonmoving party, no genuine issues of material fact exist and the moving
1 The Gerlachs appeal both the trial court's order granting summary judgment in favor of the City
and the trial court's order denying their motion for reconsideration. However, because the trial
court's order granting summary judgment in favor of the City and dismissing the case was proper.
there was no basis for granting a motion for reconsideration.
3
No. 45571 -4 -I1
party is entitled to judgment as a matter of law. CR 56(c). Summary judgment maybe entered in
favor of the nonmoving party if there are no disputed facts and as a matter of law the nonmoving
party is entitled to summary judgment dismissing the action. Leland v. Frogge, 71 Wn.2d 197,
201, 427 P.2d 724 (1967) ( "While there is authority for granting summary judgment for a
nonmoving party ..., it would be expected that such judgment would be either one of dismissal,
or for relief sought by or uncontestedly due that second party. "); see also Impecoven v. Dep't of
Revenue, 120 Wn.2d 357, 365, 841 P.2d 752 (1992); Rubenser v. Felice, 58 Wn.2d 862, 866, 365
P.2d 320 (1961).
Here, the trial court concluded that the Gerlachs had no legal basis for relief because the
appearance of fairness doctrine, codified in RCW 42.36.010, does not apply to the initial
consideration of a permit when the permit decision is made without a quasi-judicial action in an
open, public hearing. The trial court was correct. The appearance of fairness doctrine applies to
judicial or quasi-judicial actions where there is an open, public hearing or contested proceeding.
RCW 42.36.010. The Gerlachs have not presented any legitimate basis for applying the
appearance of fairness doctrine to a purely administrative decision made by executive branch
officials without an open, public hearing or contested proceeding.
The appearance' of fairness doctrine, as it applies to land use decisions, is codified in
chapter 42.36 RCW. RCW 42.36.010 strictly defines the application of the appearance of fairness
doctrine in land use decisions:
Application of the appearance of fairness doctrine to local land use decisions shall
be limited to the quasi-judicial actions of local decision - making bodies as defined
in this section. Quasi-judicial actions of local decision - making bodies are those
actions of the legislative body, planning commission, hearing examiner, zoning
adjuster, board of adjustment, or boards which determine the legal rights, duties, or
4
No. 45571 -4 -II
privileges of specific parties in a hearing or other contested case proceeding. Quasi -
judicial actions do not include the legislative actions adopting, amending, or
revising comprehensive, community, or neighborhood plans or other land use
planning documents or the adoption of area -wide zoning ordinances or the adoption
of a zoning amendment that is of area -wide significance.
Under the plain language of RCW 42.36.010 the appearance of fairness doctrine does not apply to
administrative decisions made by the City Planning Department without an open, public hearing
or contested proceeding.
Statutory interpretation is a question of law that we review de novo. Clallam County v.
Dry Creek Coal., 161 Wn. App. 366, 385, 255 P.3d 709 (2011) (citing Wenatchee SportsmenAss'n
v. Chelan County, 141 Wn.2d 169,175, 4 P.3d 123 (2000)). When the plain language of the statute
is unambiguous, our inquiry ends. Dry Creek Coal., 161 Wn. App. at 385 (citing Bravo v. Dolsen
Cos., 125 Wn.2d 745, 752, 888 P.2d 147 (1995)). "Unambiguous statutes are not subject to
interpretation, one looks at the plain language of the statute without considering outside sources."
Durland v. San Juan County, 174 Wn. App. 1, 22 -23; 298 P.3d 757 (2012) (citing State v. Delgado,
148 Wn.2d 723, 727, 63 P.3d 792 (2003)).
The plain language of RCW 42.36.010 is clear and unambiguous. 'In order for the
appearance of fairness doctrine to apply, the decision must be a quasi-judicial action made by a
local decision = making body. And, a quasi-judicial action requires a hearing or other contested
case proceeding. RCW 42.36.010.
Here, there was no quasi - judicial action because there was no hearing or contested case
proceeding. The initial consideration of the Gerlachs' SSDP application was made by the City
Planning Department after reviewing the Gerlachs' application materials and public comments.
The Gerlachs argue that consideration of their SSDP application was a public hearing because the
5
No. 45571 -4 -Il
application was posted publically and members of the public were invited to comment. However,
they cite no authority to support their proposition that posting an application for public comment
transforms the City Planning Department's consideration of a permit application into a hearing or
other contested proceeding. DeHeer v. Seattle Post- Intelligencer, 60 Wn.2d 122, 126, 372 P.2d
193 (1962) ( "Where no authorities are cited in support of a proposition, the court is not required
to search out authorities, but may assume that counsel, after diligent search, has found none. ").
Accordingly, the Gerlachs cannot show that consideration of their SSDP application was a quasi -
judicial action.
Moreover, the City Planning Department is not a legislative body, planrving commission,
hearing examiner, zoning adjuster, or board that determines legal rights, duties, or privileges of
parties in a hearing or contested case proceeding. Therefore, any action taken by the City Planning
Department is not an action taken by a local decision - making body as defined in RCW 42.36.010.
Accordingly, RCW 42.36.010 does not apply to the actions of the City Planning Department.
The Gerlachs argue that some cases imply that the appearance of fairness doctrine applies
to land use decisions made before administrative hearings. But the Gerlachs' argument lacks
merit. The legislature has specifically prohibited us from expanding the application of the
appearance of fairness. RCW 42.36.100 is explicit;
Nothing in this chapter prohibits the restriction or elimination of the appearance of
fairness doctrine by the appellate courts. Nothing in this chapter may be construed
to expand the appearance of fairness doctrine.
Based on the legislature's clear directive, we do not have the authority to apply the appearance of
fairness doctrine to actions other than quasi-judicial actions by local decision - making bodies. To
3
No. 45571 -4 -II
the extent that any case cited by the Gerlachs provides otherwise, we must conclude that it was
wrongly decided.
Thus, because the appearance of fairness doctrine codified in RCW 42.36.010 does not
apply to decisions made by the City Planning Department, there is no. legal basis for the Gerlachs'
claim. Accordingly, we affirm the trial court's order granting summary judgment in favor of the
City and dismissing the Gerlachs' declaratory judgment action.
A majority of the panel having determined that this opinion will not be published in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
We concur:
Worswick,'P.J.
lvlaxa,
7
Lee, J.
THE SUPREME COURT OF WASHINGTON
MARCUS and SUZANNE GERLACH,
Petitioners,
V.
CITY OF BAINBRIDGE ISLAND, et al.,
Respondents.
NO, 91200-9
ORDER
C/A NO. 45571-4-11
Department II of the Court, composed of Chief Justice Madsen and Justices Owens,
Stephens, Gonzalez and Yu, considered at its April 28, 2015, Motion Calendar, whether review
should be granted pursuant to RAP 13.4(b), and unanimously agreed that the following order be
entered.
IT IS ORDERED:
That the Petition for Review is denied.
DATED at Olympia, Washington this 29th day of April, 2015.
For the Court
+CRIF F JUSTICE
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
JUN d 2015
RECEIVED AND FILED
IN OPEN cOURT
MAY 2 91015
DAVID W PETERSON
KI r8AP ('011P17! r��RfC
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COURNTY OF KITSAP
MARCUS GERLACH and ) NO. 11 -2- 02084 -5
SUZANNE GERLACH, )
Plaintiffs }
vs. )
ORDER: DISMISSAL WITHOUT PREJUDICE
CITY OF BAINBRIDGE ISLAND )
Defendant. )
1
The above - captioned matter came on ex parte calendar for dismissal without prejudice. Upon
consideration of the pleadings and papers .filed in the appeal, the Court makes the following Order.
IT IS HEREBY ORDERED:
1)
Dated:
The Court grants the motion to file a dismissal without prejudice,
r
ORDER DISMISSAL WITHOUT PREJUDICE 1
J ULLr,G V1 111-, oupol tut l.Uu1L
f
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
MARCUS GERLACH and SUZANNE L.
GERLACH, husband and wife,
Appellants,
V,
CITY OF BAINBRIDGE ISLAND, a
municipal corporation and DOES 1 -10,
Respondents.
No. 45571 -4 -1I
MANDATE
Kitsap County Cause No.
13 -2- 00136 -7
The State of Washington to: The Superior Court of the State of Washington
in and for Kitsap County
This is to certify that the opinion of the Court of Appeals of the State of Washington;
Division II, filed on December 16, 2014 became the decision terminating review. of this court of
the above entitled case on April 29, 2015. Accordingly, this cause is mandated to the Superior
Court from which the appeal was taken for further proceedings in accordance with the attached
true copy of the opinion. Costs have been awarded in the following amount:
Judgment Creditor, City of Bainbridge Island, $205.44
Judgment Debtor, Marcus and Suzanne Gerlach, $205.44
coURro
V
OF
IN TESTIMONY WHEREOF, I have hereunto set
my hand and affixed the seal of said Court at
Tacopa , this ` day of June, 2015_
Clerk Kthe -Co tir't of ppeals,
State of Washington, Z. II
CASE #: 45571 -4 -11, Mandate Pg 2
Marcus and Suzanne Gerlach, Appe
James Edward Haney
Ogden Murphy Wallace, P.L.L.C,
901 5th Ave Ste 3500
Seattle, WA, 98164 -2008
Hants v City of Bainbridge Island, Respondent
Marcus S Gerlach
Attorney at Law
579 Stetson PI SW
Bainbridge Island, WA, 98110-2551