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The Honorable Stafford L. Smith
Hearing Held February 17, 2016
BEFORE THE CITY OF BAINBRIDGE ISLAND
HEARING EXAMINER
MARGARET DUFRESNE,
Appellant,
V.
CITY OF BAINBRIDGE ISLAND,
through its Director of the Department of
Community Development.
Respondent.
NO. PLN50387 ADM
CITY'S POST - HEARING BRIEF
I. INTRODUCTION
Margaret Dufresne has appealed a code interpretation by the City of Bainbridge Island
Department of Community Development concerning the construction of a single - family
residence on property located at 11131 and 11143 Rolling Bay Walk. On October 14, 2015, Ms.
Dufresne requested that then - Director Katharine Cook interpret the Bainbridge Island Municipal
Code (`BIMC ") in the following manner:
Taking into account the permit history, as well as applicable
sections of the SMP, acknowledge that the City has already issued
approvals which allow construction of a single - family home on
waterfront property owned by Margaret Dufresne.
In the alternative, interpret the Bainbridge Island SMP (including
subsection 16,12.060.K.4(c)(iii) to allow development of a single -
family home on the lots in questions because: (1) there is not a
regulated marine bluff present; and /or (2) even if there was, the
proposed home development is allowed because sufficiently far
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CITY'S POST - HEARING BRIEF - 1
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215
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away from the crest of the slope. Ms. Dufresne is allowed to seek
approval pursuant to the critical areas "special review" process.
Exhibit B to Appeal ofAdministrative Decision at 1.
In response to Ms. Dufresne's request, Ms. Cook issued a code interpretation on
November 6, 2015 that made three specific rulings regarding Ms. Dufresne's proposed
development:
1. There is no current or pending building permit application
on file with the City allowing construction of a single -
family home on your property. Any building permit
application for construction of a single - family home on
your property would be reviewed for compliance with
current building and land use regulations, including the
City's 2014 Shoreline Master Program.
2. The City's current GIS database indicates that almost the
entirety of your property is encumbered by a marine bluff.
The SMP does not contain a "special review process" for
marine bluffs.
3. The encumbered lot provisions (BIMC 16.12.030.C. Le) are
not applicable to your property because (a) they apply only
to properties "significantly encumbered by shoreline
critical area buffers," not the critical area itself and (b)
development on encumbered lots must meet the landslide
hazard provisions of BIMC 16.12.060, which prohibit
development on the face of a marine bluff.
November 6, 2015 Administrative Decision ( "ADM ') at 1. Ms. Dufresne has appealed this
determination to the Hearing Examiner, arguing (a) that the City's approval of a conditional use
permit for the construction of a retaining wall on her property in 2004 somehow entitles her to
build a single - family residence on the property twelve years later; (b) that the portion of her
property on which she proposes to build is not a "marine bluff' within the meaning of that term
in BIMC 16.12.080; (c) that because the proposed location of the residence is not on a marine
bluff, the encumbered lot provisions of BIMC 16.20.030.C.1.e apply and she can develop
without a shoreline variance; and (d) that because the proposed location of the residence is not on
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CITY'S POST - HEARING BRIEF - 2
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215
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a marine bluff, the special report provisions of BIMC 16.12.060.K.4.c apply and she can develop
her property if she submits a geotechnical report supporting it.
This matter was heard by the Hearing Examiner on February 17, 2016 in an open record
appeal hearing. After the appeal hearing, the Hearing Examiner issued an order requesting
briefing from the parties on two specific issues:
• The appropriate scope of a code interpretation conducted
under the rather broad terms of BIMC 2.16.020.D.3, taking
into account the need to provide meaningful assistance to
the requesting party while not usurping or circumventing
the City's permitting process; and
• The application of the rules of statutory construction to the
specific code provisions under review within this appeal
proceeding.
Hearing Examiner's Briefing Notice (February 19, 2016) at 1. The Hearing Examiner also
invited the parties, at their discretion, to brief other issues in addition to the ones specified above.
Id. This brief addresses each of the issues raised in this appeal, both those set forth the Hearing
Examiner's Briefing Order and those set forth in Ms. Dufresne's prehearing and post - hearing
briefing. For the reasons hereafter set forth, the Director's November 6, 2015 code interpretation
should be sustained and Ms. Dufresne's appeal should be denied.
II. ARGUMENT
A. CODE INTERPRETATION IS TIGHTLY CONSTRAINED BY THE RULES OF
STATUTORY CONSTRUCTION.
BIMC 2.16.020.D.3 provides that
Any person may request an interpretation of the zoning code,
shoreline master program, or subdivision regulations. The director
of planning and community development may issue interpretations
of the zoning code, shoreline master program, or subdivision
regulations as needed, and shall post issued interpretations on the
city website.
While the authority given by this section is broad, it is not unlimited. As will be discussed in
more detail in the next section of this brief, the rules of statutory construction provide significant
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CITY'S POST - HEARING BRIEF - 3
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215
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constraints on code interpretation. Under those rules, code interpretation can be used only to
ascertain the meaning of ambiguous language and may not be used to modify the code in any
way. State ex rel. Thigpen v. City of Kent, 64 Wn.2d 823, 826, 394 P.2d 686 (1964); State v.
Spino, 61 Wn.2d 246, 149, 377 P.2d 868 (1963). Thus, the Hearing Examiner is limited in these
proceedings to determining what the code language at issue means and how that code applies and
has no authority to determine whether the Dufresne property meets the code's substantive
requirements.
B. THE RULES OF STATUTORY CONSTRUCTION REQUIRE THE HEARING
EXAMINER TO UPHOLD THE DIRECTOR'S INTERPRETATION.
1. The SMP's Marine
Protects Critical Areas by Mainta
Conditions.
3reted in a Manner the
Municipal ordinances are construed according to the rules of statutory construction.
Ellensburg Cement Prods., Inc. v. Kittitas County, 179 Wn.2d 737, 743, 317 P.3d 1037 (2014).
The objective of such construction is to ascertain and give effect to the legislative intent. Id.
Where the meaning of ordinance language is plain on its face, that plain meaning must be given
effect as an expression of legislative intent and no further construction is necessary. City of
Spokane v. Spokane County, 158 Wn.2d 661, 673, 146 P.3d 893 (2006). Where a provision of an
ordinance is ambiguous, however, the provision must be construed "within the context of the
regulatory and statutory scheme as a whole." ITT Rayonier v. Dalman, 122 Wn.2d 801, 807, 863
P.2d 64 (1993). When that statutory scheme contains two or more provisions that address the
same subject or thing (statutes that are in pari materia), those provisions should be read together
to constitute one consistent law. State v. Houck, 32 Wn.2d 681, 684, 203 P.2d 693 (1949). If a
provision is subject to two reasonable constructions, one of which will carry out and the other
defeat the manifest intent of the statutory scheme, the provision should be given the former
construction. City of Seattle v. Fontanilla, 128 Wn.2d 492, 498, 909 P.2d 1294 (1996); Rosa
Irrigation Dist. v. State, 80 Wn.2d 633, 638, 497 P.2d 166 (1972).
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CITY'S POST - HEARING BRIEF - 4
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215
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The manifest intent of the City regulations at issue in this case is clear. The restrictions
on development in geologically hazardous areas set forth in BIMC 16.12.030 and 16.12.060, and
the definition of marine bluff set forth in BIMC 16.12.080, are all part of the City's regulation of
critical areas under the City's Shoreline Master Program ( "SMP'). When adopting an SMP
under the Shoreline Management Act, a city is required to include regulations that "provide a
level of protection of critical areas at least equal to that provided by the local government's
critical areas ordinances adopted and thereafter amended pursuant RCW 36.70A.060(2)."
(Emphasis added). RCW 90.58.090(4). Under RCW 36.70A.060(2), a city's critical areas
ordinances are required to " rp otect critical areas that are required to be designated under RCW
36.70A.170," including "geologically hazardous areas," which RCW 36.70A.030(9) defines as
"areas that because of their susceptibility to erosion, sliding, earthquake, or other geological
events, are not suited to the siting of commercial, residential, or industrial development
consistent with public health or safety concerns." (Emphasis added). As used in these statutes,
the terms "protect" and "protection" mean that a city's critical areas ordinances must "not allow
existing conditions to further degrade" and "in short, protect critical areas by maintaining
existing conditions." Swinomish Indian Tribal Community v. Western Washington Growth
Management Hearings Board, 161 Wn.2d 415, 421, 166 P.3d 1198 (2007). Thus, under the
rules of statutory construction set forth above, the intent of the provisions at issue in this case is
to protect geologically hazardous areas within the shoreline jurisdiction of the City, i.e., to
maintain existing conditions in those areas, and the provisions must be given the construction
that best carries out that intent.
Ithe
2. The 2004
i Residence on her
woval lives Noi
On April 27, 2004, a shoreline conditional use permit (SCUP 1256) was approved by the
Washington State Department of Ecology for the construction of two retaining/catchment walls
partially located on the property now owned by Ms. Dufresne. Attachment S to Administrative
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CITY'S POST - HEARING BRIEF - 5
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164-2008
Tel: 206.447.7000/Fax: 206.447.0215
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Appeal. Ms. Dufresne argues that this 2004 approval entitles her to build a single - family
residence on her property today because the SCUP authorized future home construction. Ms.
Dufresne's argument is both factually and legally incorrect.
The scope of the 2004 SCUP is clearly and consistently stated in the record. The
Environmental Checklist submitted for the SCUP on November 12, 2003, the Notice of
Mitigated Determination of Nonsignificance (MDNS) issued by the City on February 18, 2004,
the March 4, 2004 City Staff Report to the Hearing Examiner in Support of the SCUP, and the
April 27, 2004 SCUP all expressly describe the project being authorized as "construction of
retaining/catchment walls to protect existin single - family residences from further damage from
sliding debris." (Emphasis added). Attachment 9 to Appeal of Administrative Decision,
Environmental Checklist at 2, Question I1; Attachment 8 to Appeal of Administrative Decision
at 1; Attachment 7 to Appeal of Administrative Decision at 1; Attachment 5 to Appeal of
Administrative Decision, SCUP at 1. The SCUP's authorization was thus specifically limited to
the protection of the exit residences and did not authorize any future construction. While it
is true that the environmental checklist for the SCUP indicated a potential for future home
construction on the Dufresne property, this statement simply indicated that future permits might
be applied for and did nothing to change the specific scope of development authorized by the
SCUP. Ms. Dufresne's assertion to the contrary is factually incorrect.
Ms. Dufresne's assertion is also legally incorrect. Essentially, Ms. Dufresne is arguing
that the SCUP's authorization of the catchment /retaining wall vested her right to construct a
single - family home on her marine bluff property despite the 2014 adoption of SMP regulations
prohibiting it. Washington law does not support this position. In Potala Village Kirkland, LLC
v. City of Kirkland, 183 Wn. App. 191, 334 P.3d 1143 (2014), review denied, 182 Wn.2d 1004
(2015), the Washington Court of Appeals confirmed that the only way to vest one's rights to
build a structure is to file a building permit application. There is no dispute in the present case
that Ms. Dufresne did not have a building permit application for a single - family residence
{ JEH1423864.DOCX;1/13023.130001/ }
CITY'S POST - HEARING BRIEF - 6
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215
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pending when the 2014 SMP was adopted and does not have a building permit application
pending to this day. Thus, even if the 2004 SCUP could be somehow be construed as having
contemplated her residential construction, she would not be vested to the pre -2014 SMP
regulations and would be required to comply with the current SMP in order to build. The
Director's interpretation that Ms. Dufresne's proposal is subject to the current SMP must be
upheld and Ms. Dufresne's appeal of that interpretation must be denied.
3. Ms. Dufresne's Proverty is Located on a Marine Bluff and Development is
Prohibited.
BIMC 16.12.060.K.4(c)(iii) provides that "All proposed development on the face of a
marine bluff or in the required buffer area shall be prohibited" except under certain
circumstances that are not applicable in this case. Ms. Dufresne argues that this provision does
not apply to her property because it is not a "marine bluff." This is incorrect.
BIMC 16.12.080 defines the term "Bluff, marine" as meaning "a high, steep bank or
cliff." While Ms. Dufresne's briefing focuses on the dictionary definitions of "cliff' and "face"
in order to argue that her proposed building pad is not on a vertical slope and thus not on a
marine bluff, no such resort to the dictionary is necessary here. The rules of statutory
construction require that when two statutes or regulations address the same subject or thing, the
two are to be read together in pari materia. State v. Houck, supra, 32 Wn.2d at 684. Here,
BIMC 16.12.080 should be read in conjunction with BIMC 16.12.060.K.4.c.i. The latter
provision relates to development adjacent to marine bluffs and describes marine bluffs as having
"slopes greater than 40 percent that exceed a vertical height of 10 feet within the marine
shorelines jurisdiction." Reading this regulatory provision in pari materia with the definition of
"marine bluff' in BIMC 16.12.080, it is clear that the face of the marine bluff is not required to
be vertical and is only required to have a slope greater than 40% (i.e., that is steep) that extends
more than 10 vertical feet in height (i.e., that is high) and that is located within the marine
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CITY'S POST - HEARING BRIEF - 7
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215
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shoreline jurisdiction of the City (i.e., within 200 feet of the ordinary high water mark of Puget
Sound).
Applying this definition to the Dufresne property, the property lies on the face of a
marine bluff. As indicated in the ADM, "the City's current GIS database indicates that the
entirety of [the Dufresne] property is encumbered by a marine bluff' i.e., that the slopes on the
property are steep enough (40% or greater) and high enough (in excess of 10 feet) to meet the
requirements of the marine bluff definition. ADM at 1, ¶1. The photograph of the Defresne
property produced as Attachment 3 to Ms. Dufresne's Appeal of Administrative Decision
corroborates this determination. Although the retaining wall does indeed separate the upper
portion of the slope from the lower portion on which Ms. Dufresne wishes to build, the steepness
of the slope below the retaining wall and the fact that it exceeds 10 feet in height is readily
apparent, as is the steepness and height of the slope above the retaining wall. Thus, the evidence
in the record supports the Community Development Director's interpretation that the entirety of
Ms. Dufresne's property is located on the face of a marine bluff and that development is
therefore prohibited under BIMC 16.12.060.4.K.c.iii. The Director's interpretation that Ms.
Dufresne's property is located on the face of a marine bluff must be upheld and Ms. Dufrense's
appeal of that interpretation must be denied.
4. Because the Dufresne
16.12.030.C.1.e Do Not A
BIMC 16.12.030.C. Le provides, in pertinent part, that
of a Marine Bluff, the
Single - family development and redevelopment, except in the Point
Monroe District, that is proposed on a legal nonconforming lot
located in the shoreline jurisdiction or proposed for a shoreline
property that is significantly encumbered by shoreline or critical
area buffers may be allowed without a shoreline variance when the
following criteria are met...
(Emphasis added). The unambiguous language of this code section indicates that it applies only
when a lot is significantly encumbered "by a critical area buffer." Here, it is not a critical area
buffer that encumbers the portion of the property that Ms. Dufresne seeks to develop; it is the
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CITY'S POST - HEARING BRIEF - 8
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215
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critical area itself, i.e. the marine bluff. The Director's interpretation that the encumbered lot
provisions of BIMC 16.12.030.0.1 do not apply to the Dufresne property must be upheld and
Ms. Dufresne's appeal of that interpretation must be denied.
5. The "Special Reports" Provision of BIMC 16.12.060.K.4.c,i Does Not Apply
Because the Proposed Location of the Single - Family Residence is On the Face of the
Marine Bluff and Not Adjacent to It.
Ms. Dufresne's final argument is that her property can be developed with a single- family
residence upon submittal of a geotechnical report as provided in BIMC 16.12.060.K.4.c.i. That
code section reads as follows:
Applicants proposing development adjacent to a marine bluff (i.e.,
slopes greater than 40 percent that exceed a vertical height of 10
feet within the marine shorelines jurisdiction) shall submit a
geotechnical engineering report prepared in accordance with the
requirements of the master program and the shoreline- specific
critical areas regulations contained in this section. In terms of this
regulation, "adjacent" means development proposed either within
50 feet from the crest of a marine bluff or within a distance equal
to the height of the slope from the crest (measured from the top),
whichever is greater.
Ms. Dufresne's argument concerning this section fails for two reasons. First, this section
authorizes development only on areas ad'� 1 to a marine bluff, not on the bluff itself. As has
been pointed out above, the entirety of the Dufresne property is on the face of a marine bluff and
not adjacent to it.
Second, the "adjacent" area referred to in this section is clearly the area above the crest of
the marine bluff and not below the crest. The provisions of statutes and ordinances are to be
given a rational, sensible construction. Kinnan v. Jordan, 131 Wn. App. 738, 751, 129 P.3d 807
(2006). Strained, unlikely, and unrealistic interpretations are to be avoided. Qwest Corp. v. City
of Kent, 157 Wn.2d 545, 553, 139 P.2d 1091 (2006). Interpreting the "adjacent" definition in
BIMC 16.12.040.K.4.c.i as Ms. Dufresne apparently does, to include areas below the crest is a
strained and unlikely interpretation and should be rejected.
{ JEH1423864.DOCX;1/13023.130001/ }
CITY'S POST - HEARING BRIEF - 9
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215
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6. The Shoreline Variance Process is the Only Process that Can be Used to
Authorize Development of the Dufresne Property.
Since development of the Dufresne property cannot be accomplished under any of the
code sections she cites, the only option available is the shoreline variance process. BIMC
2.16.165.G authorizes a shoreline variance when "there are extraordinary or unique
circumstances relating to the property such that the strict implementation of the master program
would impose unnecessary hardships on the applicant." Where, as here, the proposed
development is located landward of the ordinary high water mark, a variance can be granted if
the applicant can show that:
i. The strict application of the bulk, dimensional or
performance standards set forth in the applicable master
program precludes, or significantly interferes with,
reasonable use of the property;
ii. The hardship described in subsection G.4.a.i of this section
is specifically related to the property, and is the result of
unique conditions such as irregular lot shape, size, or
natural features and the application of the master program,
and not, for example, from deed restrictions or the
applicant's own actions;
iii. The design of the project is compatible with other
authorized uses within the area and with uses planned for
the area under the comprehensive plan and shoreline master
program and will not cause adverse impacts to the shoreline
environment;
iv. The variance will not constitute a grant of special privilege
not enjoyed by the other properties in the area;
V. The variance requested is the minimum necessary to afford
relief; and
vi. The public interest will suffer no substantial detrimental
effect.
The variance process thus incorporates the concept of "reasonable use" and allows development
within a critical area when no other option exists. If Ms. Dufresne can meet the criteria of BIMC
2.16.165.G, she can develop a single - family residence on her property even though the entirety
{ JEH1423864.DOCX;1/13023.130001/ }
CITY'S POST - HEARING BRIEF - 10
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215
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of her property is encumbered by a marine bluff. The Director's determination that a shoreline
variance was the appropriate mechanism for Ms. Dufresne to follow was correct.
III. CONCLUSION
For all of the reasons set forth in this brief, the code interpretations contained in the
November 6, 2015 ADM should be upheld and Ms. Dufresne's appeal should be denied. The
manifest intent of the City of Bainbridge Island's shoreline critical areas regulations is to
maintain critical areas in their existing condition. In interpreting the code provisions at issue in
this case, the Hearing Examiner should ask which construction of those provisions best carries
forward this intent. When that rule of statutory construction is applied, the correctness of the
Director's interpretation concerning the presence of a marine bluff on the Dufresne property and
the inapplicability of other remedies becomes apparent. The Director's interpretation is clearly
correct and must be upheld.
RESPECTFULLY SUBMITTED this 10th day of March, 2016.
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CITY'S POST - HEARING BRIEF - 11
OGDEN MURPHY WALLACE, P.L.L.C.
Y
James E. Haney, WSBA #11058 /
Special Counsel to the City of Ba nbi
Island
OGDEN MURPHY WALLACE, P.L.L.C.
901 Fifth Avenue, Suite 3500
Seattle, Washington 98164 -2008
Tel: 206.447.7000/Fax: 206.447.0215