APPELLANT'S POST HEARING BRIEF1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
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, acting
through its Director of the Department of
Community Development,
No. PLN50287 ADM
APPELLANT'S POST - HEARING BRIEF
I. INTRODUCTION
The hearing on Appellant Margaret Dufresne's Administrative Code Interpretation
Appeal was held Wednesday, February 17, 2016. Pursuant to the Hearing Examiner's
February 19, 2016, Briefing Notice, Ms. Dufresne hereby submits her post- hearing brief on
the following:
• The appropriate scope of a code interpretation conducted
under the rather broad terms of BIMC 2.16.020D.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.
DENNIs D. REYNOLDS LAW OFFICE
APPELLANT'S POST - HEARING BRIEF - 1 of 13 200 Winslow Way West, suite 380
[90322 -1 Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -6865, fax
Email: dennis @ddrlaw.com
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
• Application of the facts (and rules of construction) to the
code section in question.
11 114110LOU" � hk
A. Appellant's Code Interpretation Request Is Framed To Allow Meaningful Relief
Without Usurping Any Required Permit Process
The Bainbridge Island Municipal Code ( "BIMC ") broadly allows a person to request a
code interpretation to seek direction from the Department of Planning and Community
Development (the "Department ") concerning the meaning and/or construction of specific
code provisions, including but not limited to the Shoreline Master Program ( "SMP "). See
BIMC § 2.16.020.D.3. Following the determination of Department Staff in July 2015 that
Appellant could not develop a parcel of property she owns due to the presence of a marine
slope citing to BIMC § 16.12.060.K.4.c.iii, Staff suggested that Appellant pursue the matter
further via a Code Interpretation request.
The suggestion to use a code interpretation — which is a land use application under the
law — was sensible then and it is now. The code interpretation process allows Ms. Dufresne
the ability to present facts and circumstances to the Department for a determination of how to
construe and apply the SMP to her specific parcel of property. Simply, a request for Code
Interpretation allows Ms. Dufresne to present factual and legal arguments to support her
position that: (1) the SMP should not be construed to prohibit the proposed residential
development; and (2) the SMP should not be construed to require any shoreline permit under
the facts and circumstances, e.g. a variance, only exemption. On paper, the process allows a
property owner to avoid a protracted — and unnecessary — permitting process.
A Code Interpretation is consistently included as a procedural option by municipalities
in Washington as a money and time- saving process, preserving resources and providing an
expedient way for property owners to determine the applicability of certain regulatory
DENNIs D. REYNOLDs LAW OFFICE
APPELLANT'S POST - HEARING BRIEF - 2 of 13 200 Winslow way West, suite 380
[90322 -1 Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -6865, fax
Email: deniiis@ddrlaw.com ddrlaw.com
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
requirements to specific parcels, and /or the potentially allowable development prior to
submitting land use applications. See, e.g., McTavish v. City of Bellevue, 89 Wn. App. 561,
563, 949 P.2d 837 (1998) (group of interested property owners requested a code interpretation
concerning the maximum allowable density for adjoining property); Smoke v. City of Seattle,
132 Wn.2d 214, 937 P.2d 186 (1997) (where the city took the position that the presence of a
rectifier prohibited permitting for certain building sites, the department directed the property
owner of their option to apply for a formal code interpretation, but noted that such request is
not a condition precedent to obtaining a permit); Peter Schroeder Architects, AIA v. City of
Bellevue, 83 Wn. App. 188, 191, 920 P.2d 1216 (1996) (in response to property owner's
request for code interpretation, city determined that the proposed addition would not qualify
as a "minor structural element" and that a permit would be required).
Appellant submitted an official Request for Code Interpretation on October 14, 2015,
File No. PRE50287. The City did not determine that the "scope" of such request, i.e., the
question of whether or not the SMP should be interpreted to prohibit development of
Appellant's property or to require a shoreline variance, was improper in any way. Had the
City agreed with Ms. Dufresne in its Code Interpretation Decision, it still would have required
Appellant to obtain a shoreline exemption decision and critical areas review. As such, the
Code Interpretation process does not usurp or circumvent the permitting process.
If, as here, Staff determines in a Code Interpretation Decision that the City's
regulations must be construed as requiring a permit, the requesting party must either apply for
such permit and /or appeal the Code Interpretation decision. The two processes — Code
Interpretation and Land Use Permit Application - are not mutually exclusive. Rather, they
apply concurrently unless Staff rules in a Code Interpretation Decision that no permit is
DENNis D. REYNOLDS LAW OFFICE
APPELLANT'S POST - HEARING BRIEF - 3 of 13 200 Winslow way West, Suite 380
[90322 -1 Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -6865, fax
Email: deniiis@ddrlam,.com ddrlam,.com
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
required. See BIMC § 2.16.020.0 (Types of Land Use Applications) and .020.1 (Who Can
Apply).' Either result — that a land use permit is or is not required under the Code — is
allowable. BIMC § 2.16.020.D.3.
Ms. Dufresne requested nothing more than a determination of how the SMP regulatory
provisions are applied to her specific parcels of property. Given the broad language of BIMC
2.16.020.D.3 concerning Code Interpretation requests and Staff's direction to Appellant
following its July 2015 initial determination, the Examiner should rule that scope of the
Request is appropriate and does not in any way undennine, circumvent or usurp the land use
permitting process of the City. Otherwise, the opportunity to request a code interpretation is
written out of the Code, a result Appellant believes the Examiner would not condone. Any
more than would the Director of Planning and Community Development.
B. Statutory Construction
It is appropriate for the Examiner as a quasi-judicial official, and lawyer, to interpret
the law, especially under the circumstances at bar, where the code language in question is new
and has not been the subject any prior, let alone long standing, interpretation. Such
interpretation is a de novo question of law.
The Examiner is asked to answer two basic legal questions:
(a) Whether the prohibition on development on the face of the bluff or in the
required buffer applies under the conceded facts and circumstances?
(b) If so, whether the City is precluded from prohibiting residential development
since the catchment /retaining wall was approved for the specific purpose to
allow replacement of previously demolished or damaged homes?
1 Had the Department issued a Code Interpretation Decision that the SMP allows development of a single- family
home on the property in question, the matter would have been concluded and no further process would be
DENNIs D. REYNOLDS LAw OFFICE
APPELLANT'S POST - HEARING BRIEF - 4 of 13 200 Winslow Way West, suite 380
[90322 -1 Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -6865, fax
Email: dennis@ddrlaw.com
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
An answer to these questions involve application of the rules of statutory construction,
which are set out below. The City has conceded the purpose of the prohibition is to protect
public safety
1. General Statutory Construction Principles
Under Washington law, courts "interpret local ordinances the same as statutes. An
unambiguous ordinance will be applied by its plain meaning, while only ambiguous
ordinances will be construed." Sleasman v. City of Lacey, 159 Wn.2d 639, 151 P.3d 990,
(2007) (internal citations omitted); City of Gig Harbor v. North Pacific Design, Inc., 149 Wn.
App. 159, 167, 201 P.3d 1096 (2009), rev. denied, 166 Wn.2d 1037. Ms. Dufresne leaves to
sound discretion by the Examiner if the code sections at issue are ambiguous. To her, they are
not.
Courts assess the plain meaning of a statutory enactment, "viewing the words of a
particular provision in the context of the statute in which they are found, together with related
statutory provisions, and the statutory scheme as a whole." Burns v. City of Seattle, 161
Wn.2d 129, 140, 164 P.3d 475 (2007). The subject, nature, and purpose of the statute as well
as the consequences of adopting one interpretation over another are also considered. Id at
146. Court look at the purpose of the law in question and the entire context. Whatcom
County v. Bellingham, 128 Wn.2d 537, 546, 909 P.2d 1303 (1996) (internal citations omitted).
As the Bellingham court stated:
The purpose of an enactment should prevail over express but
inept wording. The court must give effect to legislative intent
determined "within the context of the entire [ordinance]."
[Ordinances] must be interpreted and construed so that all the
language used is given effect, with no portion rendered
meaningless or superfluous. The meaning of a particular word
required.
DENNIs D. REYNOLDS LAW OFFICE
APPELLANT'S POST - HEARING BRIEF - 5 of 13 200 Winslow Way West, Suite 380
[90322 -1 Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -6865, fax
Email: dennis chi ddrlaw.com
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
in [an ordinance] "is not gleaned from that word alone, because
our purpose is to ascertain legislative intent of the [ordinance]
as a whole."
Id. (citations omitted) (emphasis added).
Under another well -known canon of statutory construction, "a single word in a statute
should not be read in isolation." State v. Roggenkamp, 153 Wn.2d 614, 623, 106 P.3d 196
(2005). Further, a more specific regulation controls over a general regulation. See Port
Townsend Sch. Dist. No. 50 v. Brouillet, 21 Wash.App. 646, 655, 587 P.2d 555 (1978) ( "[i]t is
a fundamental rule of statutory construction that where a general statute and a subsequent
special statute relate to the same subject matter, the provisions of the special statute will
prevail unless it appears that the legislature intended expressly to make the general statute
controlling ").
With respect to land use issues, for more than a half - century, Washington courts have
held that "the fundamental principle to be used in interpreting zoning laws" is that: "[Z]oning
ordinances are in derogation of the common law and must be strictly construed in favor of the
property owner." Keller v. Bellingham, 20 Wn. App. 1, 11, 578 P.2d 881 (1978) (citing
Pearson v. Evans, 51 Wn.2d 574, 576, 320 P.2d 300 (1958)). Ordinances are not to be
extended beyond their express language, and where an ordinance is silent on an issue it is
presumed to allow rather than prohibit the same. Id.; see also, East v. King County, 22 Wn.
App. 247, 258, 589 P.2d 805 (1978) (holding zoning ordinance that prohibited "enlarging"
nonconforming use but was silent on "intensifying" same could not be construed to prohibit
intensification, noting some ordinances "specifically provide against intensifying" such uses);
Morin v. Johnson, 49 Wn.2d 275 (1956) (holding that, when a zoning ordinance is
ambiguous, it should be construed in favor of the property owner). The necessity for notice is
APPELLANT'S POST - HEARING BRIEF - 6 of 13
[90322 -1
DENNis D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -6865, fax
Email: dennis @,ddrlaw.com
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
especially strong where the effect of the ordinance is to regulate the otherwise free use of
property. State ex rel. Weiks v. Tumwater, 66 Wn.2d 33, 35 -36, 400 P.2d 789 (1965).
2. Proper Construction of the BIMC
Applying these general statutory construction principles to the Bainbridge Island
Municipal Code, Appellant's proposed single- family residence should be determined to be
allowed under the SMP and no shoreline variance should be required. The City's position
that: (1) the proposed development is on the "face" of a marine bluff, or (2) within an adjacent
buffer is unsupportable, especially in light of the unrebutted testimony that it is safe to
construct a home at the site.
The term "marine bluff' is defined as a high, steep bank or cliff. BIMC § 16.12.080.
The Director is incorrect that the definition of a "marine slope" is a "slope greater than 40
percent that exceed a vertical height of 10 feet." In this regard, the Director cites to BIMC
§ 16.12.030.K.4.c.i, which relates to invoking the "special report" shoreline critical areas
review process.
Development on the "face" of a marine bluff is prohibited under BIMC
§ 16.12.030.K.4.c.iii. Here, even if there was a "marine bluff on the project site (which is not
the case as set out immediately below), no development is proposed on the "face" of the
slope, i.e., where the combination catchment /retaining wall (the "Wall ") is constructed. The
face of a bluff or cliff is defined as its "vertical face. "2 There is nothing ambiguous about the
term "face" as it applies to a bluff or cliff. The City's determination that the proposed
development would be on the face of a marine bluff is factual and legal error.
z http : / /www.collinsdictionary.com /dictionary /english /cliff -face
DENNIS D. REYNOLDS LAW OFFICE
APPELLANT'S POST - HEARING BRIEF - 7 of 13 200 Winslow way west, suite 380
[90322 -1 Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -6865, fax
Email: demiis @ddrlaw.coni
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Turning back to the definition at issue, with fullest respect, the question is not whether
the bluff is "natural or altered." While the bluff is obviously altered, so is a ski slope which is
still a bluff. The proper focus is what is on the site at this time. There is no debate that what
is there presently is (1) a Wall, and (2) at the base of the Wall, construction debris which
covers the former building pads for two homes. The Wall is not a cliff or bank: it is structure.
In this regard, there are separate definitions for "shoreline stabilization," "shoreline
modifications" and "structures," in the SNIP found at BIMC § 16.12.080, all of which apply
here:
® "Shoreline modifications" means those actions that modify the physical
configuration or qualities of the shoreline area, usually through the construction of a
physical element such as a dike, breakwater, pier, weir, dredged basin, fill, bulkhead,
or other shoreline structure. They can include other actions, such as clearing, grading,
or application of chemicals.
• "Shoreline stabilization, structural" means shoreline stabilization which
includes a footing, foundation, or anchors. Materials are typically hardened structures
which armor the shoreline. See also "shoreline stabilization, hard structure" and
"shoreline stabilization, hybrid structure.
• "Shoreline stabilization, hard structure" means shore erosion control
practices using hardened structures that armor and stabilize the shoreline landward of
the structure from further erosion.
• "Shoreline stabilization, structural" means shoreline stabilization which
includes a footing, foundation, or anchors. Materials are typically hardened structures
APPELLANT'S POST- HEARING BRIEF - 8 of 13
[90322 -1
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -6865, Fax
Email: dennis @ddrlaw.com
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
which armor the shoreline. See also "shoreline stabilization, hard structure" and
"Shoreline stabilization, hybrid structure,"
® "Structure" means a permanent or temporary edifice or building, or any
piece of work artificially built or composed of parts joined together in some definite
manner, whether installed on, above, or below the surface of the ground or water,
except for vessels (WAC173- 27- 030(15) or its successor).
The State regulations also have a definition which is relevant:
"Shoreline modifications" means those actions that modify the
physical configuration or qualities of the shoreline area, usually
through the construction of a physical element such as a dike,
breakwater, pier, weir, dredged basin, fill, bulkhead, or other
shoreline structure.
WAC 173 -26- 020(34).
The more specific definitions set forth above are controlling over the generic
definition of "marine slope." The combination catchment /retaining Wall constructed in 2004
took the place what may have been a "marine bluff," a "landslide hazard area," and /or a
"geographically hazardous area" in the past. Existing conditions do not support a
determination that any of these critical areas still exist on the subject property. See BIMC
§ 16.12.060.13.2 (the determination of whether an area is in fact a "critical area,"
notwithstanding its designation or mapping is controlled by "site specific conditions "). The
Wall takes the place of the dirt. The bluff is only that portion of the slope above the retaining
wall. The area below the Wall is essentially a pile of dirt, not a slope, and certainly not a
"marine slope." Considering all applicable definitions in the SMP and existing conditions on
the property, the highly modified slope is not the shoreline form or feature as envisioned by
the SMP definition of a "marine bluff." Therefore, under the unique circumstances, there is
DENNIs D. REYNOLDS LAW OFFICE
APPELLANT'S POST - HEARING BRIEF - 9 of 13 200 Winslow Way West, Suite 380
[90322 -1 Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -6865, fax
Email: dennis n ddrlaw.coin
1
no "marine bluff present on the Dufresne site. It was error for the City to determine
2 11 otherwise.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
The "required buffer" qualification must be the marine shoreline buffer since the
SMA, per RCW 36.70A.480(3)(d), takes primacy. See BIMC § 16.12.030.A.8 and Table
16.12.030 -3 (Shoreline Buffer Table). Ms. Dufresne's proposal is not within the shoreline
buffer. First, no buffer applies in this matter because of the intervening road. See BIMC
§ 16.12.030.B.3.d.i(C); BIMC § 16.12.060.B.3.g.. Two, as set out immediately below, the
SMP allows development within 50 feet of the crest of the slope, specific language which
controls to the extent there is a buffer. Third, even if there was an "applicable buffer," the
residential use would be a legal nonconforming use under the Code, which is allowed. See
BIMC § 16.12.030.C. Li. The use has never been abandoned; in fact, it was explicitly
approved in the shoreline approval issued to construct the Wall for future residential use, an
approval which is binding on the City under the doctrine of finality.
The SMP allows development within 50 feet of the "crest" of the marine bluff or
within a distance equal to the height of the slope from the crest (measured from the top)
"... whichever is greater." BIMC § 16.12.060.K.4.c.i. The term "crest" is not defined in the
SMP. Its ordinary definition is: "the highest part of point of something (such as a hill or
wave)." http://www.merriam-webster.com/dictionary/crest. The proposed home will be
located approximately 65 feet from the shore. It would be about 10 feet from the retaining
wall and about 25 feet from the catchment wall. The top (crest) of the slope above the Wall is
about 112 feet from the proposed residence. In addition, for encumbered and nonconforming
lots, single family home development is allowed without a shoreline variance. See BIMC
APPELLANT'S POST - HEARING BRIEF - 10 of 13
[90322 -1
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -6865, fax
Email: dennis cr ddrlaw.com
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
§ 16.12.030. C. Le. The plat map is attached hereto as Appendix A -1, which shows no marine
setbacks were established for the historic plat.
The Director is wrong that the encumbered lot provisions do not apply for the plat that
created the two lots in question, Manitou Park, Volume 3 of Plats, p.31, Records of Kitsap
County. (Exhibit 1, Exhibit B thereto, Attachment 9). The building pad is not within the
"critical area" itself, as the Director thought. At most, it is in a steep slope buffer that can be
reduced under the SMP. For the slope in question, the specific buffer language is found in
BIMC § 16.12.060,K.5.c.i(A)(2), which allows a reduction to 10 feet. Under the exemptions,
the buffer could be reduced to zero. See BIMC § 16.12.060.K.6.£
The Director is also wrong when she opines "The SMP does not contain a special
review process for marine bluffs." This may be a matter of semantics, but BIMC
§ 16.12.060.K.4.c.1 explicitly provides for submission of geotechnical reports for applicants
"... proposing development adjacent to a marine bluff...." The Code in this regard allows a
"notice of intent" be submitted pursuant to BIMC 2.16.020, the City's Land Use application
procedures. See BIMC 16.12.060.K.4.a.ii. The Notice applies to a proposal "... to construct
on a landslide hazard area or to reduce the minimum buffer in a landslide hazard area." Here,
the home is proposed at the toe of the Wall, where the unconsolidated construction debris was
left.
III. CONCLUSION
For all the foregoing reasons, and as set forth at the hearing on this appeal on February 17,
2016, the Hearing Examiner should grant Appellant's appeal and reverse the Code
Interpretation Decision issued by the City.
APPELLANT'S POST - HEARING BRIEF - I I of 13
[90322 -1
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -6865, fax
Email: dennis @ddrlaw.com
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
DATED this 291h day of February 2016.
_DENNIS D. REYNOLDS LAW OFFICE
4
By
Dennis D. Reyno ds, WSBA #04762
Attorney for Appellant Margaret Dufresne
APPELLANT'S POST - HEARING BRIEF - 12 of 13
[90322 -1
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -6865, fax
Email: dennis @ddrlaw.com
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify under penalty of perjury under the laws of the State
of Washington, that I am now, and have at all times material hereto been, a resident of the
State of Washington, over the age of 18 years, not a party to, nor interested in, the above -
entitled action, and competent to be a witness herein.
I caused a true and correct copy of the foregoing pleading to be served this date, in the
manner indicated, to the parties listed below:
Stafford L. Smith, Hearing Examiner
❑
Legal Messenger
c/o Deborah Rose, Judicial Specialist
❑
Hand Delivered
City of Bainbridge Island
❑
Facsimile
280 Madison Avenue North
❑
First Class Mail
Bainbridge Island, WA 98110
Li
Express Mail, Next Day
drosenbainbrid ewa.gov, email
La
Email
Hearing Examiner
Lisa Marshall, City Attorney
❑
Legal Messenger
City of Bainbridge Island
❑
Hand Delivered
280 Madison Avenue North
❑
Facsimile
Bainbridge Island, WA 98110
❑
First Class Mail
(206) 842 -2545, tel
❑
Express Mail, Next Day
lmarshallgbainbridgewa.gov, email
gd-�Email
cityadmingbainbridgewa. og_v; email
Attorneys, for Respondent City of Bainbridge Island
Christy Carr, Senior Planner
ccarrgbainbridgewa. gov, email
Josh Machen, Planning Manager
jmachenkbainbridgewa.gov, email
DATED at Bainbridge Island, Washington, this 29th day of February, 2016.
J13n Brenner --
Paralegal
APPELLANT'S POST - HEARING BRIEF - 13 of 13
[90322 -1
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780 -6777, tel / (206) 780 -6865, fax
Email dennisoddrlaw.com
DUFRESNE Post - Hearing Brief
IE— -
At
KB011
- In
A o,
Lo
cn
Ai,