CITY'S REQUEST FOR RECONSIDERATIONC3GDEN
MUFTHY
WALLACE
ATTORNEYS
OGDEN MURPHY WALLACE, PLLC T 206.447.7000 OMWLAW.COM
901 FIFTH AVENUE, SUITE 3500 F 206.447.0215
SEATTLE, WA 98164 -2008
James E. Haney
jhaney@omwlaw.com
VIA EMAIL (JSMITH(a),BAINBRIDGEWA.GOV
AND VIA REGULAR MAIL
June 16, 2017
Mr. Wick Dufford
Bainbridge Island Hearing Examiner Pro Tempore
c/o Jennifer Smith
HEX Administrative Specialist
P.O. Box 151
Rollingbay, WA 98061
RE: City of Bainbridge Island's Request for Reconsideration
The Reserve at Winslow Preliminary Subdivision (PLN 50622 SUB)
Dear Mr. Dufford:
I have been retained to represent the City of Bainbridge Island in this matter. The City
respectfully requests that the Hearing Examiner reconsider those portions of his Findings of Fact,
Conclusions of Law and Order ( "Decision ") entered herein on June 3, 2017, as described in this
letter and for the reasons set forth below.
INTRODUCTION - REQUEST FOR RELIEF
This Request for Reconsideration is made under the provisions of Rule 6.4(b) of Chapter II of
the Bainbridge Island Hearing Examiner's Rules of Procedure, as adopted by Bainbridge Island
City Council Resolution 2003 -14. Rule 6.4(b) requires that a Request for Reconsideration
"explicitly state the alleged errors of procedure or fact." Parties moving for reconsideration
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Mr. Wick Dufford
June 16, 2017
Page 2
"may also include direction to a specific issue that was inadvertently omitted from the
Examiner's recommendation of decision."
In this case, as will be explained below, the Hearing Examiner erred in entering his Findings of
Fact 7, 8, 20, 22 - 25 and 27 and in reaching his Conclusion of Law 4. The Hearing Examiner
also erred in the lot coverage conditions imposed in Project Condition 11. The Hearing
Examiner also erred in not imposing additional conditions in order to resolve conflicts between
the agreements entered into by the applicant and the owners of Parcel 028 and the preliminary
plat drawings. Finally, the Hearing Examiner also erred in inadvertently omitting an addition to
Project Condition 5.E that was recommended by staff in a memo dated May 17, 2017 (HEX
Exhibit 43) or, if the omission was not inadvertent, the Hearing Examiner erred in failing to
impose the additional condition. The City respectfully requests that the Hearing Examiner
reconsider the Decision and correct the errors as described below.
STATEMENT OF ERRORS
A. The Hearing Examiner Erred in Not Expressly Conditioning the Preliminary flat
on the Continued Existence of and Compliance with the BLA Agreement and the
Access and Utility Agreement.
During the hearing on this matter on May 18, 2017, the applicant introduced two sets of
agreements as Hearing Examiner ( "HEX ") Exhibit 44 that the applicant argued resolved certain
access, boundary and utility issues relating to an adjacent parcel, referred to in the record as
Parcel 028: (1) a "Settlement and Agreement regarding Boundary Line Dispute" dated
September 28, 2016 and recorded under Kitsap County Auditor No. 201610040258, as amended
by an "Amendment to Settlement and Agreement Regarding Boundary Line Agreement dated
October 11, 2016, and recorded under Kitsap County Auditor No. 201610200039; and (2) an
"Agreement Regarding Public Water Connection, Well- Decommissioning, and Driveway
Resurfacing" dated September 28, 2016, and recorded under Kitsap County Auditor No.
201610040259, as amended by an "Amendment to Agreement Regarding Public Water
Connection, Well- Decommissioning, and Driveway Resurfacing" dated October 11, 2016, and
recorded under Kitsap County Auditor No. 201610200038 and a "Second Amendment to
Agreement Regarding Public Water Connection, Well- Decommissioning, and Driveway
Resurfacing" dated November 7, 2016, and recorded under Kitsap County Auditor No.
201611140389.
For ease of reference, the Settlement and Agreement Regarding Boundary Line Dispute and its
amendment will be hereafter referred to collectively as the "BLA Agreement" and the
Agreement Regarding Public Water Connection, Well- Decommissioning, and Driveway
Resurfacing and its two amendments will be collectively referred to as the "Access and Utility
Agreement." The Hearing Examiner relied on these agreements in making his Findings of Fact
7, 8, 22, 24, 25 and 27, in reaching his Conclusion of Law 4, and in imposing his Project
Conditions 5(E) and 11. Unfortunately, the Hearing Examiner erred in not recognizing that the
BLA Agreement and the Access and Utility Agreement are both contingent upon the closing of
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Mr. Wick Dufford
June 16, 2017
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the applicant's purchase of The Reserve at Winslow property and that these agreements can be
voided at any time if the applicant decides not to proceed with the project. The Amendment to
the BLA Agreement and the Amendment to the Access and Utility Agreement both contain
identical sections that provide as follows:
11. Agreement Void if Closing Does Not Occur. If the
anticipated sale of Grantor's Property from Grantor to Builder does
not proceed to Closing by October 31, 2017 or prior to that date
Grantor or Builder provide notice to the other party of such party's
intent not to proceed to Closing, then this Agreement shall become
void and no longer have any force and effect and Grantor and
Grantee shall automatically be released from any obligations stated
in this Agreement.
Under this section, the agreements relied upon by the Hearing Examiner can be voided at any
time if either the owner of The Reserve at Winslow Property or the project applicant decide not
to proceed with the sale of the property. Because the Hearing Examiner has not expressly
conditioned the preliminary plat approval on the continued existence of and compliance with the
BLA Agreement and the Access and Utility Agreement, this could result in a preliminary plat
approval that was granted based on an agreements that no longer exist.
If the Hearing Examiner intended that the preliminary plat approval be granted only if the BLA
Agreement and Access and Utility Agreement were complied with, the Hearing Examiner should
have clearly and expressly conditioned the approval accordingly. In the alternative, the Hearing
Examiner could have conditioned the preliminary plat approval on the provision of an access and
utility easement for Parcel 028 over the southernmost lots of The Reserve at Winslow (as shown
on the preliminary plat drawings, HEX Exhibit 32, Sheet 2 and as relied upon by staff in making
its recommendation for preliminary plat approval) or the Hearing Examiner could have imposed
this easement condition as a contingency in the event that the BLA Agreement and Access and
Utility Agreement were voided. The Hearing Examiner erred in not taking one of these actions.
2. The Hearinjz Examiner Erred in Entering Finding of Fact 7 and Conclusion of Law
4 and in Imposing Project Condition 11 because the Proposed Boundary Line
Adjustment will Change the Lot Areas and Lot Coverage.
The Hearing Examiner's Finding of Fact 7, Conclusion of Law 4, and Project Condition 11 are in
error given the Hearing Examiner's reliance on the boundary line adjustment between The
Reserve at Winslow and Parcel 028 contemplated by the BLA Agreement. Finding of Fact 7
states that "[t]he plat will meet density and lot area requirements and is conditioned to note
setback and lot coverage standards on the face of the plat." Project Condition 11 states that "Lot
coverage of 20 percent shall be allocated as follows as shown on the face of the plat: 6,200
square feet per lot and 696 square feet to Open Space Tracts." Conclusion of Law 4 relies on
Finding of Fact 7 and Project Condition 11, at least in part, for the conclusion's statement that
"[a]s conditioned herein, the proposed preliminary plat meets requirements of the land use code."
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Mr. Wick Dufford
June 16, 2017
Page 4
In fact, the boundary line adjustment proposed by the BLA Agreement will alter the areas of
Lots 11 and 12 in the preliminary plat, will reduce the overall lot coverage allowed in the plat,
and will require a redistribution of the lot coverage on each of the lots within the plat as set forth
in Project Condition 11. The Hearing Examiner erred in not recognizing these issues and
requiring the plat to be revised accordingly.
The lot areas and lot coverage figures that are shown on Sheet 4 of 5 of the Preliminary Plat
drawings (HEX Exhibit 32) and that were relied upon by the Hearing Examiner in entering
Finding of Fact 7 and Conclusion of Law 4 and in imposing Project Condition 11 are based on
the preliminary plat configuration as originally proposed, i.e., without the proposed boundary
line adjustment between The Reserve at Winslow and Lot 028 that is contemplated by the BLA
Agreement. If the proposed boundary line adjustment is completed, the area of Lots 11 and 12
and the area of Tract B will be reduced and the total lot coverage for land within the preliminary
plat will also be reduced.
Without the proposed boundary line adjustment, the total land area within The Reserve at
Winslow plat is 379,290 square feet and the total allowable lot coverage within the plat is 75,096
square feet. HEX Exhibit 32 at Sheet 4. If the proposed boundary line adjustment is completed,
the total land area within the plat will be reduced by 5,399.8 square feet to 373,890.2 square feet,
figures that are derived by multiplying the proposed 20 -foot width of the property to be removed
from the plat by the BLA times the total length of the southern boundary of Lots 11 and 12 and
Tract B (269.99 feet) and then subtracting that total from the total land area. Id. With this
reduction in total land area, the 20% lot coverage allowed for the plat under BIMC Table
18.12.020 -1 is also reduced by 318 square feet, thereby requiring an adjustment in the 6,200
square foot per lot allocation of lot coverage described in Finding of Fact 7 and Project
Condition 11. Therefore, if the Hearing Examiner is relying on the boundary line adjustment to
resolve access and utility issues relating to Parcel 028, Finding 7 and Condition 11 are inaccurate
and must be revised. The Hearing Examiner erred in not doing so as part of the Decision.
If the Hearing Examiner intended that the preliminary plat approval be granted only if the
boundary line adjustment took place, the Hearing Examiner should have required that the lot
coverage be adjusted as discussed above. In the alternative, the Hearing Examiner could have
conditioned the preliminary plat approval on the provision of an access and utility easement for
Parcel 028 over the southernmost lots of The Reserve at Winslow (as shown on the preliminary
plat drawings, HEX Exhibit 32, Sheet 2 and as relied upon by staff in making its
recommendation for preliminary plat approval), a condition that would have kept the lot
coverage as set forth on Sheet 4 of HEX Exhibit 32 and would have made Finding of Fact 7,
Conclusion of Law 4, and Project Condition 11 accurate statements. The Hearing Examiner
erred in not doing so and the City respectfully requests that the Hearing Examiner reconsider
Finding of Fact 7, Conclusion of Law 4, and Project Condition 11 and make appropriate
modifications in those findings, conclusions and conditions to reflect the Hearing Examiner's
chosen option as provided in this section of the Request for Reconsideration.
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Mr. Wick Dufford
June 16, 2017
Page 5
3. The Hearing Examiner Erred in Entering Finding of Fact 8 because the BLA
Agreement the Access and Utility Agreement, and the Preliminary Plat Utilities
Plans Conflict as to the Location of the Water Main Serving the Plat.
The Hearing Examiner's Finding of Fact 8 is in error insofar as it relies on the BLA Agreement
and the Access and Utility Agreement for the location and maintenance of the water main
serving the plat. The preliminary plat utilities plans (HEX Exhibit 30) propose location of the
water main serving the plat within the 20 -foot strip of land to be conveyed to the owner of Parcel
028 under the BLA Agreement. The Access and Utility Agreement provides, however, that the
water main will be located "within Grantor's Property," i.e., the property that remains within The
Reserve at Winslow. These agreements therefore conflict regarding the water main location and
this conflict is not resolved by the Hearing Examiner's Finding of Fact 8. The Hearing
Examiner's Finding 8 is therefore in error and the Finding should be revised to accurately reflect
where the water main is to be located.
In the alternative, the Hearing Examiner could decide not to rely on the BLA Agreement and the
Access and Utility Agreement to resolve the water main issue and condition the preliminary plat
approval on the provision of a utility easement over the southernmost lots of The Reserve at
Winslow in lieu of the proposed boundary line adjustment (as shown on the preliminary plat
drawings, HEX Exhibit 32, Sheet 2 and as relied upon by staff in making its recommendation for
preliminary plat approval). The Hearing Examiner should revise Finding of Fact 8 and condition
the plat appropriately in order to correct this error.
4. The Hearing Examiner Erred in Entering Finding of Fact 20 regarding
Preservation of Trees.
In his Finding of Fact 20, the Hearing Examiner stated that "The applicant will save as many
trees as possible on building lots 9 and 10, and has adopted a septic design that will save trees."
This statement is in error. Trees to be removed and trees to be retained in the plat are depicted
on Sheet 3 of the preliminary plat drawings (HEX Exhibit 32) and Sheet 1 of the Tree Retention
and Landscape Plan (HEX Exhibit 16), both of which were submitted by the applicant on
October 25, 2016. The "Tree Legend" on HEX Exhibit 32 indicates that all existing trees on
Lots 9 and 10 are "Trees to be removed," and the "Sheet Notes" on HEX Exhibit 16 do not
indicate that any trees will be preserved on Lots 9 and 10. Finding 8 is thus contradicted by the
proposed plans and the finding should be revised to reflect the evidence in the record. In the
alternative, if the Hearing Examiner - desires to condition the plat on the preservation of existing
trees on Lots 1 and 10, the Hearing Examiner should impose such a condition explicitly in the
conditions of approval.
5. The Hearing Examiner Erred in Entering Findings of Fact 22 - 25 rvgardip", the
Sufficienev of the BLA Agreement and the Access and Utility Agreement to Resolve
the Access and Utility Issues for Parcel 028.
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Mr. Wick Dufford
June 16, 2017
Page 6
In Findings 22 - 25, the Hearing Examiner set forth the terms of the BLA Agreement and the
Access and Utility Agreement and determined that these agreements resolve the access and water
supply issues for Parcel 028. This Finding is in error for several reasons.
First, as pointed out above, the Hearing Examiner did not expressly condition the preliminary
plat approval on the continued existence of and compliance with the BLA Agreement and the
Access and Utility Agreement and those agreements are essentially voidable at any time.
Without such an express condition, there is no assurance that the home on Parcel 028 will be
connected to the public water system, that the existing well on Parcel 028 will be
decommissioned, that access will be provided to Parcel 028 by the conveyance of land pursuant
to the BLA Agreement, that a fence will be installed preventing access to Finch Road, or that any
other access or utility issue related to Parcel 028 will be resolved.
Second, the proposed preliminary plat drawings are in direct conflict with the BLA Agreement
and the Access and Utility Agreement in that the drawings do not reflect the BLA and instead
show a 20 -foot wide access and utility easement along the southern boundary of Lots 11 and 12,
and Tract B that was relied upon by staff in making its recommendation for preliminary plat
approval. HEX Exhibit 32, Sheet 3.
Finally, the City has made no determination as to whether the BLA meets the City's code
requirements and the BLA cannot therefore be relied upon to resolve any problems at this time.
The Hearing Examiner erred in relying on the BLA Agreement and the Access and Utility
Agreement in making Findings of Fact 22 - 25 and should therefore reconsider those Findings
and either condition the preliminary plat approval on the continued existence of and compliance
with the BLA Agreement and the Access and Utility Agreement, or condition the preliminary
plat on specific portions of those agreements being complied with, or accept the staff
recommendation and avoid reliance on the BLA Agreement and Access and Utility Agreement
and instead condition the plat on the provision of an access and utility easement for Parcel 028
and the water main serving the plat across the south 20 feet of Lots 11 and 12 and Tract B.
6. The City will be Unable to Approve the Final Plat for The Reserve at Winslow if the
Adverse Possession Claim of the Current Owners of Parcel 028 is Not Resolved by a
Court or Waived by those Owners and the Hearing Examiner Should Have Noted
that in Finding of Fact 26.
In Finding of Fact 26, the Hearing Examiner stated that a claim of adverse possession by the
current owner of Parcel 028 had been waived in the BLA Agreement. While this may or may
not be legally correct, the current owner of Parcel 028 continued to assert the claim at the hearing
(HEX Exhibit 46) and the claim may preclude final plat approval notwithstanding the Hearing
Examiner's Finding. In Halverson v. City of Bellevue, 41 Wn. App. 457, 704 P.2d 1232 (1985),
the Court of Appeals held that it is improper for a city to grant final plat approval when an
adverse possession claim has been made, unless the claimant is willing to consent to the plat.
This is so because RCW 58.17.165 requires that any dedication made by a plat must contain a
certificate signed by "all parties having any ownership interest in the lands subdivided ..." and
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Mr. Wick Dufford
June 16, 2017
Page 7
the term "ownership interest" is broad enough to encompass those making claims by adverse
possession. The Court went on to hold that because only courts may determine adverse
possession claims, a city may not determine that a claim is invalid and may therefore not approve
a final plat without the claimant's consent. The City may therefore be unable to grant final plat
approval of The Reserve at Winslow based on Halverson if the adverse possession claim is still
asserted at the time final plat approval is applied for and the City would like to note that for the
record.
7. While Conclusion of Law 5 is Accurate as Written. a Plat Amendment May be
Required in Order to Accomplish the BLA.
BIMC 2.16.125(K)(1) provides that
An alteration of an approved preliminary long subdivision that
does not change the general plat layout, increase off -site impacts of
the subdivision, or modify a provision or condition that was a
matter of dispute by any party during the preliminary approval
process may be made by the director after notice and opportunity
to comment are provided to the applicant and all parties of record.
The point that the City staff was trying to make at the hearing was that, as explained more fully
in Section 2 above, the proposed boundary line adjustment may require a reconfiguration of the
lots after the BLA in order to ensure that the lot coverage is appropriately distributed among the
lots, If that needs to occur as a consequence of the BLA, this could constitute "a change [in] the
general layout" or the "modifjication] of a provision or condition that was a matter of dispute by
any party during the preliminary approval process," and thus require a formal plat amendment.
8. The Hearing Examiner Erred in Modifyinp, Project Condition 5(E).
In Finding of Fact 27, the Hearing Examiner concurred with the staff's conditions of approval
except for a modification of Project Condition 5(E). In the modified Project Condition 5(E), the
Hearing Examiner added two conditions that appear to address the BLA Agreement and the
Access and Utility agreement and eliminated some conditions proposed by staff. This was in
error for several reasons.
First, Project Condition 5(E)(2) added by the Hearing Examiner appears to be an attempt to
require completion of the BLA and at least some of the provisions of the Access and Utility
Agreement, but it is vague in that it only requires "documentation showing accomplishment." If
the Hearing Examiner wished to rely on the BLA Agreement and the Access and Utility
Agreement to meet the requirements for preliminary plat approval, the Hearing Examiner should
have expressly conditioned the preliminary plat approval on the completion of the various items
contained in the BLA Agreement and the Access and Utility Agreement. In the alternative, the
Hearing Examiner should do as staff suggested and simply condition the plat to provide the
access and utility easement along the southern boundary of Lots 11 and 12 and Tract B.
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Mr. Wick Dufford
June 16, 2017
Page 8
Second, as pointed out above in connection with Finding of Fact 7, the BLA Agreement will
have consequences for the lot area and lot coverage required in the plat and may not be able to be
accomplished as proposed for those reasons. Failure to address this issue at the preliminary plat
approval stage could result in a plat that does not meet City standards.
Third, as discussed regarding Findings of Fact 8 and 23 above, the Access and Utility Agreement
conflicts with the BLA Agreement and the preliminary plat utility drawings on the location of
the water main and this conflict is not resolved by the preliminary plat approval. The
preliminary plat drawings need to be revised to reflect the boundary line adjustment or the
Hearing Examiner needs to revise Project Condition 5(E) to provide for the 20 -foot wide utility
and access easement contemplated by the preliminary plat drawings and recommended by the
staff.
Fourth, the Hearing Examiner did not adopt a modification of Project Condition 5(E) that was
proposed by City staff in a memo dated May 17, 2017 (HEX Exhibit 43):
No construction on or to the site shall occur, including clearing,
grading, or utility work, and no permits authorizing such work
shall be issued, prior to resolution of access and encroachment
issues related to Lot 028."
Failure to impose this condition could result in the preliminary plat being essentially built out
without the access and utility issues for Parcel 028 being resolved. In addition, because the BLA
Agreement and the Access and Utility Easement can essentially be voided at any time, this
condition should be imposed to ensure that resolution of the access and utility issues for Parcel
028 occurs early on before permits are submitted and construction takes place.
Finally, the modified Project Condition 5(E) says "(See Finding 28 above)" which must be in
error because Finding of Fact 28 states simply: "The public use and interest will be served by the
platting of the proposed subdivision." The Hearing Examiner presumably meant to rely on
Findings of Fact 22, 23, 25, and 27 or some combination thereof. The Hearing Examiner should
correct this error to reflect the specific findings relied upon.
CONCLUSION
For all of the reasons set forth above, the Hearing Examiner's June 3, 2017, Findings of Fact,
Conclusions of Law, and Order in this matter are in error and should be reconsidered. The
Hearing Examiner should reissue his decision with modified findings, conclusions, and
conditions as set forth in this Request for Reconsideration and provide clear and enforceable
conditions of approval that can be implemented by staff and the applicant. The City respectfully
requests that its Request for Reconsideration be granted and that the Hearing Examiner's
decision be modified accordingly.
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Mr. Wick Dufford
June 16, 2017
Page 9
Very truly yours,
OG EN MURPHY WALLACE, P.L.L.C.
James Paney
JEH
cc: Joe Levan
Kelly Tayara
Randall Olsen
Nancy Bainbridge Rogers
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