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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