HEX Lasser Appeal Report and Decision 033015March 30, 2015
CITY OF BAINBRIDGE ISLAND, WASHINGTON
HEARING EXAMINER
REPORT AND DECISION
Proceeding: Administrative Code Interpretation Appeal of Richard Lasser, Geoffrey R. Lane
and Sally Isabel Heins
File number: ADM19190
Appellants: Richard Lasser, Geoffrey R. Lane and Sally Isabel Heins
Location: 6647 and 6651 NE Baker Hill Road
FINDINGS OF FACT
A. Procedural History
1. On behalf of the appellants listed above, Attorney Richard B. Shattuck on December 1, 2015,
filed an appeal challenging a code interpretation issued on November 18, 2014, by the City's Director
of Planning and Community Development (the "Director"). The issues requested for interpretation
generally involved whether a regulated stream exists within a ravine on the Tangleberry plat on or near
the appellants' properties and the potential regulatory effect on appellants' proposed view corridor
maintenance of City codes controlling the removal of vegetation.
2. Based on the December 1, 2015, appeal statement, the Director's November 18, 2014, code
interpretation and the definitions stated at BIMC 16.20.030, the prehearing order issued January 6,
2015, provided the following summary of issues:
A. What is the relationship between WAC 222-16-030 and the City's stream regulations?
To what extent has the BIMC adopted the scheme of definitions and regulations governing
streams provided in WAC Chapter 222-16? (The parties should note that within BIMC
16.20.030 there at least two applicable definitions to consider; BIMC 16.20.030(46) defines
"streams" while BIMC 16.20.030(47) defines "stream types.")
B. Is the alleged watercourse located in the Tangleberry ravine a Type Ns stream under the
BIMC as asserted within the Director's November 18, 2014, code interpretation?
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C. What City regulatory restrictions, if any, apply to vegetation removal by the appellants
in the Tangleberry ravine?
While the prehearing order is instructive in framing the issues, as a de novo proceeding the actual scope
of review is determined by the facts introduced into the hearing record as analyzed pursuant to the
applicable legal principles.
3. The prehearing order also set a January 20, 2015, deadline for parties' witness disclosures,
prehearing motions and initial briefs. A January 23, 2015, supplemental order clarified that further
briefing procedures would be taken up at the appeal hearing. Near the close of the January 29, 2015,
hearing a final collective briefing deadline was set for February 18, 2015. Timely briefs were
submitted by the appellants on January 20, and February 17, 2015, and by the City on January 29, and
February 18, 2015.
4. A post -hearing motion filed by the appellants on February 20, 2015, seeks to have the Examiner
strike the City's February 18, 2015, brief on the grounds that it attempts to interject new evidence into
the record after its closure, both narrative description and a new exhibit. While the appellants' motion
purports to identify the entire City brief as objectionable, its actual basis is less comprehensive. What
is problematic about the City's brief are the portions attempting to provide new information describing
the City's stream typing administrative process and attaching a Wild Fish Conservancy report as an
example. But other elements of the brief dealing with the City's legal authority and analyzing the
stream testimony offered at the hearing are unobjectionable. The appellants' motion to strike should be
granted with respect to the first two sentences appearing within the second paragraph on page 2 of the
City's February 18, 2015, brief (lines 20 to 29), from line 18 on page 3 through the sentence ending on
line 14 of page 4, and to the attached Wild Fish Conservancy report.
5. By the same token, a portion of the appellants' February 17, 2015, brief appears also to contain
evidential representations that are beyond the scope of the record and thus should not be considered in
fashioning this decision. This excludable material comprises a discussion of the alleged inadequacy of
the City's island -wide inventory of ravines that, according to the Examiner's recollection, lacks
foundation in the hearing testimony. Thus, the three sentences within the appellants' February 17,
2015, brief beginning on line 21, page 6, and ending at line 3, page 7, will be disregarded as improperly
evidential in character.
B. Regulatory Issues
6. The appellants are residents of the Tangleberry development, whose upslope lots possess
desirable views of Rich Passage and Mount Rainier. Tangleberry also encompasses a wooded ravine
where the native vegetative growth, if unmanaged, can obstruct these attractive views. At the bottom
of the ravine is a watercourse that may or may not qualify, in whole or part, as a regulated stream
within the City's codes. The testimony of the residents was to the effect that protective covenants were
recorded some thirty years ago for the Tangleberry plat that sought to preserve view corridors via
building height limits and vegetative removal procedures. The later adoption by the City of its Critical
Areas Ordinance (CAO) without doubt operates to limit vegetation removal in the ravine and along a
regulated stream, legally superseding any private covenants to the contrary. The essential issue
presented by this code interpretation appeal is thus whether after adoption of the CAO the Tangleberry
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residents retained any rights to remove trees from the ravine and, if so, what management activities are
now permitted and which procedures must be followed.
7. While the Growth Management Act (GMA) and its implementing regulations provide a
framework for development of CAOs by local jurisdictions and offer suggestions and models for going
forward, the City is largely empowered under the GMA to make its own policy choices as to specific
regulations. The GMA availed property owners and other citizens who were unhappy with the City's
current CAO regulatory scheme an opportunity, immediately after its adoption, to challenge its
compliance with state requirements before a Growth Management Hearings Board. But once the
deadline for invoking this option expired, later challenges to the legal sufficiency of the CAO became
foreclosed.
8. The City has ample legal authority to adopt its own CAO definitions of and regulations
governing streams, stream types, ravines and their applicable buffers. It also has the option to adopt
existing state schemes and models, or some unique combination of state and local provisions. The City
has chosen to adopt its own singular definitions of a "ravine" and a "stream" and incorporate major
concepts from the state Department of Natural Resources (DNR) forest practice regulations regarding
"stream types". At BIMC 16.20.030.A the following definitions appear:
40. "Ravine " means a V-shaped landform generally having little to no floodplain and normally
containing steep slopes, which is deeper than 10 vertical feet as measured from the centerline of
the ravine to the top of the slope. Ravines are typically created by the wearing action of
streams. The top of the slope is determined where there is a significant change in the slope to
generally less than a 15 percent slope.
46. "Streams " means those areas in the city of Bainbridge Island where the surface water flows
are sufficient to produce a defined channel or bed. A defined channel or bed is an area which
demonstrates clear evidence of the passage of water and includes but is not limited to bedrock
channels, gravel beds, sand and silt beds, and defined -channel swales. The channel or bed need
not contain water year-round. This definition is not meant to include irrigation ditches, canals,
storm or surface water runoff devices, or other artificial watercourses unless they are used by
fish or used to convey streams naturally occurring prior to construction.
47. "Stream types " means a streams classification system based on fish usage and perennial or
seasonal water regime as found in WAC 222-16-030 and meeting the standards listed below.
a. "Type F stream " means a stream that has suitable fish habitat. If fish usage has not
been determined, water having the following characteristics are presumed to have fish
use: streams segments having a defined channel of two feet or greater within the
bankfull width and having a gradient of 16 percent or less. Determination offish usage
shall use the methodology found in Washington Department of Natural Resource's
Forest Practice Board Manual, Section 13.
b. "Type Np" means all segments of natural waters within the bankfull width of defined
channels that are perennial nonfish habitat streams. Perennial streams are waters that
do not go dry any time of a year of normal rainfall. However, for the purpose of water
typing, Type Np waters include the intermittent dry portions of the perennial channel
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below the uppermost point of perennial flow.
c. "Type Ns " means all segments of natural waters within the bankfull width of the
defined channels that are not Type S, F, or Np waters. These are seasonal, nonfish
habitat streams in which surface flow is not present for at least some portion of a year of
normal rainfall and are not located downstream from any stream reach that is a Type Np
water Ns waters must be physically connected by an above -ground channel system to
marine waters, Type F, or Np waters.
9. Within the City's regulatory system a "stream" is thus characterized by a quantity of surface
water flow "sufficient to produce a defined channel or bed", excluding artificial watercourses except
when they are used by fish or replace streams that were originally natural. Not all watercourses that are
defined as streams will be subject to stream typing under the City's scheme. For example, within the
provisions governing the putative catch-all Type Ns category a watercourse segment demonstrating a
defined channel will only be so typed if it is "physically connected by an above -ground channel system
to marine waters, Type F, or Np waters."
10. Streams and ravines are regulated by the City within BIMC 16.20.130 and .135. Within BIMC
16.20.130, the CAO section dealing with "fish and wildlife habitat conservation areas," subsection B(1)
(b) provides as follows:
1. Classification. The following categories shall be used in classifying fish and wildlife habitat
conservation areas:....
b. Streams. All streams which meet the criteria for Type F, Np and Ns waters as set forth
in WAC 222-16-030 of the Department of Natural Resources Water Typing System and
as further modified by the definitions in this chapter Once a stream has been classifiedd,
the city must document the reasons for changes in the classification.
Protective buffers for typed streams are specified at BIMC 16.20.130.C(2). The total presumptive
buffer width for both Type Np and Ns streams is 50 feet.
11. The development standards articulated at BIMC 16.20.130.C(2) also contain at subsection (g) a
provision applicable to "streams in ravines":
g. Streams in Ravines — Buffers. For streams in ravines outside the Mixed Use Town Center
with ravine sides 10 feet or greater in height, the buffer width shall be the greater of.-
i. The buffer width required for the stream type; or
ii. A buffer width which extends 25 feet beyond the top of the ravine.
12. The City and appellants agree that major portions of the Tangleberry ravine are both greater
than 10 feet in depth and subject to the CAO's regulations governing "geologically hazardous areas"
based on slope angles of 40% or greater. The City's CAO mapping shows a major stretch of ravine
dominated by 40%+ slopes over a distance of approximately 1200 feet running from Baker Hill Road
south to Wild Rose Lane. The following exemption stated at BIMC 16.20.150.F(6) controls vegetation
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management in the upper portions of the ravine above Wild Rose Lane where no stream buffer
requirement applies:
6. The trimming and limbing of vegetation for the creation and maintenance of view corridors
in accordance with the pruning standards of the International Society of Arboriculture;
provided, that the soils are not disturbed and activity will not increase the risk of landslide or
erosion. All vegetation removal must be based on a plan developed by a certified arborist and
reviewed by a geotechnical engineer to determine if it will impact slope stability.
13. The appellants' argument that the watercourse in the Tangleberry ravine should not be regarded
as a regulated stream is based primarily on a water typing technical memorandum dated June 14, 2014,
produced by Robbyn Myers, a Certified Professional Wetland Scientist with BGE Environmental, LLC,
based on her visit to the Tangleberry ravine on September 20, 2013. Ms Myers performed her water
typing analysis according the DNR Western Washington Board Manual as implemented by WAC 222-
16-030 and/or 031. In December, 2013, she was able to persuade DNR to amend its water typing maps
for the ravine area studied based on her field work.
14. Ms Myers evaluated the entire ravine watercourse system from its headwaters north of Baker
Hill Road south to its marine water discharge point, dividing it into five analytical segments. Segment
A extends about 300 feet north of Baker Hill Road and was described on her DNR Water Type
Modification Form as a "ravine with no observed channel or surface water flow." The watercourse
then crosses under Baker Hill Road within a 12 -inch culvert into Segment B, a short transitional section
which also was characterized by Ms Myers as a "wide ravine with no observed channel, water feature
or surface water flow" from the culvert outlet to a berm feature at its lower end. At the hearing the City
did not attempt to controvert or challenge Ms Myers's findings with respect to Segments A or B. Thus
it appears undisputed that neither segment demonstrated the essential channel feature characteristic of a
regulatory stream but that both form part of the ravine.
15. Segment C is the portion of the study area both with the most pronounced critical area features
and, at a mapped length of over 1000 feet, the largest. It displays not only steep ravine slopes but also
a perennial flow within the watercourse at the ravine bottom. Ms Myers provided the following
description of Segment C within her 2013 work sheets:
"...ravine with impounded wetland area with an observed surface water, perennial. The surface
water is present for approximately 100 feet both within the boundary of a wetland and as a
water feature downgradient. Channel does not meet the requirements of WAC 222-16-031..."
16. Ms Myers expanded upon these descriptions within her June 20, 2014, technical memorandum:
"A single stretch of surface flow was observed within Segment C. The reach length is
approximately 500 feet and in part, associated with a jurisdictional, sloped Category IV wetland
of area less than 1000 square feet. Water was flowing and ponding during the field review
(September 20, 2013). The surface water did not meet the criterion for minimum channel width
(WAC 222-16-031), however, the presence of surface water directed a presumption that the
stream segment was likely to retain flows at all times during a normal rainfall and thus a Type
Np water. This Type Np water is isolated from upgradient and downgradient waters and is
therefore determined as unmarked according to the Board Manual."
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17. Ms Myers's 2013 field work for each segment was logged into a DNR document labeled "Water
Type Modification Form (For changes to the Water Type Map)". It was thus explicitly performed to
DNR requirements employing DNR criteria. A major question raised in this appeal is how much of the
DNR administrative process has been imported into the City's scheme for regulating streams by the
provisions of BIMC 16.20.030.A and 16.20.130.13 quoted above, which both contain a sole specific
reference to WAC 222-16-030. First, it should be noted that Ms Myers's report references are all to
WAC 222-16-031, not 030. But in the Examiner's view this does not raise a decisive issue. WAC 222-
16-031 is an interim regulation applicable until final water typing maps have been adopted, at which
time 030 automatically becomes controlling. For our purposes there are no important substantive
differences between 030 and 031. And Ms Myers, while citing 031, has consistently employed the
newer 030 stream typing nomenclature.
18. More critical is the fact that the bases cited by Ms Myers in her report for declining to classify
the perennial flow in Segment C as a Type Np water are in fact nowhere articulated in either WAC 222-
16-031 or 030. Channel width and hydraulic isolation determinations are at most alluded to in WAC
222-16-030 and 03lat subsection (5). The actual criteria Ms Myers applied are presumably to be found
somewhere in the Forest Practices Board Manual. The Examiner encountered no reference in WAC
Chapter 222 stating that the Forest Practices Board Manual is be regarded as an adopted regulation.
The DNR website characterizes the Manual as "an advisory technical supplement to the forest practices
rules, Title 222 WAC." In summary, neither the City's adopted definitions nor WAC 222-16-030
requires that a stream otherwise qualifying for a Np classification be excluded from regulation based on
channel width or hydraulic discontinuity. While these criteria may indeed appear informally in the
DNR literature, the City has not acted to adopt them.
19. Segments D and E downstream from Segment C resist definitive regulatory characterization
based on the current record. Ms Myers's work sheets suggest the existence perennial flows through a
conglomeration of ditches and swales that she believes may not be hydraulically connected. Although
artificial in character, a ditch or swale that carries a perennial flow necessarily comprises at least a
rudimentary defined channel or bed within the meaning of BIMC 16.20.030.A (46), which does not
exclude such features if they are "used to convey streams naturally occurring prior to construction."
The regulatory status of ditches and swales conveying perennial flows will depend on their historical
antecedents. Staff represented that City records document that the present artificial channels replaced a
naturally occurring stream system. The City also contended that hydraulic connections can be logically
implied from the ravine's topography and gradient plus the existence of older culverts. The City's
mapping shows that the ravine begins to play out below Segment C but no evidence was offered as to
where the regulatory feature actually terminates.
CONCLUSIONS
1. A code interpretation appeal is focused on the scope and meaning of adopted regulations. Fact-
finding is mandated in such an appeal by the site-specific nature of the regulatory process to the extent
necessary to ascertain which regulations should apply at what locations. But the fact-finding contained
in this code interpretation procedure is provisional only. It does not collaterally estop or otherwise
preclude the City or any property owner in the future from asserting different factual conclusions about
the presence or absence of natural features based on the performance of more complete studies and
investigations.
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2. While both the code interpretation application and the City's response thereto were couched in
terms of a unitary Tangleberry ravine feature, the appellants' technical study divided the ravine into five
discretely defined segments based on site morphology, a procedure that was probably essential for any
meaningful analysis to occur. The CAO appears to provide no mechanism for determining the extent
of and classification for larger heterogeneous critical areas that have no intuitively obvious natural
boundaries.
3. The Tangleberry properties targeted by this appeal are potentially regulated by the City based on
two broad CAO features. One is the presence of a ravine of a depth and degree of steepness that all
parties agree mandates it, where present, to be regulated by the City, and the second is the possibility
that a regulated stream also lies at the bottom of some or all portions of the ravine. Since ravines are
typically created by the action of streams, the City has adopted a regulatory provision, BIMC
16.20.130.C(2)(g), that deals with the two features in combination. Unlike the buffers imposed by the
CAO on streams outside ravines, the buffer for a stream in a regulated ravine does not depend
unconditionally on a requirement that the stream qualify for water typing under the DNR system as
adopted by the City. The regulatory buffer is equal to the width imposed for the stream type or 25 feet
from the top of the ravine, whichever is greater. Therefore if a stream in a ravine does not qualify for
typing, by default the alternative 25 foot buffer applies under BIMC 16.20.130.C(2)(g). By its terms
BIMC 16.20.130.C(2)(g) applies categorically to all "streams in ravines, " not just DNR -typed waters.
4. Following generally the concept outlined in WAC 365-190-130, and in an gesture toward
establishing a framework for coordinating agency management procedures, the City at BIMC
16.20.130 has referenced together under the heading "fish and wildlife habitat conservation areas" the
marine critical areas and streams that it regulates as well as conservation areas designated by federal
and state agencies. The City's stream regulations mainly appear in this section. Within this context
BIMC 16.20.130.B(1) undertakes to establish the "categories [that] shall be used in classing fish
and wildlife habitat conservation areas. " As quoted above, regarding such classifications BIMC
16.20.130.B(1)(b) incorporates the DNR stream typing methodology contained in WAC 222-16-030.
5. The appellants argue that the BIMC 16.20.130.B(l) reference to the DNR stream typing
provisions effectively reads the City's stream definition out of the regulatory process. That is to say,
appellants contend that BIMC 16.20.130.B(1) must be read to require every reference within BIMC
16.20.130 to a "stream" to be treated as a mandatory reference to a DNR -typed stream. If a stream as
defined by BIMC 16.20.030.A(46) does not also qualify for DNR typing, appellants aver that it simply
is not regulated at all under BIMC 16.20.130 regardless of code terminology appearing to the contrary.
6. The appellants' argument confers upon BIMC 16.20.130.B(l) a regulatory role that is neither
supported by the language of the subsection nor by its relationship to the CAO scheme as a whole.
Simply put, BIMC 16.20.130.B(l) requires the DNR typing to be used when classifying a stream but
nowhere does it mandate that every regulated stream must be typed. Within the CAO scheme, typed
streams are a refined subset of the larger universe of regulated streams. That is why the CAO provides
separate definitions for "streams" and "stream types." Accepting appellants' argument would render
the City's "stream" definition superfluous.
7. Further, within BIMC 16.20.130.C(2)(g) itself the terms "streams" and "stream types" are used
separately in the precise manner set out in BIMC 16.20.030.A. Thus they clearly are not intended to be
viewed as interchangeable. The section undertakes a generic regulation of streams in ravines but ties
only one of the two buffer options to the stream typing. If the appellants' interpretation were correct,
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all the references in BIMC 16.20.130.C(2)(g) would have simply been made to typed streams in
ravines, not to both "streams" and "stream types". The DNR stream typing methodology is
concentrated on protection of fisheries habitat. The City's habitat protection goals are broader, and
where multiple critical areas are present, the centrality of any single element logically becomes less
essential. Plus the ravine definition at BIMC 16.20.030.A(40) supplies an inference that a regulatory
ravine will normally have been created by a stream.
8. The differing policy orientations of the City and DNR must inform the code interpretation
analysis. The DNR regulations at issue and the supporting Board Manual are primarily focused on
forest practices — logging that the DNR both regulates on private lands and manages itself on public
lands to generate public revenue. Notice is taken that stream protection was a relatively late addition to
the DNR regulatory portfolio arising out of citizen and tribal concerns over destruction of fisheries
habitat by uncontrolled logging practices. Unlike the City, DNR's regulatory agenda is driven by a
relatively narrow focus on achieving the minimum stream protection levels necessary to insulate still
viable salmonid habitats from further logging degradation. Unlike the City, DNR has no overarching
mandate to protect habitat values unrelated to logging impacts nor a commitment to restore streams
previously degraded. For the City, adopting the DNR water typing system is a regulatory convenience,
not a passionate embrace of DNR values. The City's environmental goals are broader and more pro-
active than those of DNR, and its CAO reflects a wider range of regulatory objectives, including
critical areas restoration.
9. In summary, the specific terms of WAC 222-16-030 do not operate to modify the application of
the City's adopted water -typing regulations beyond the provisions stated in its Municipal Code. To the
extent that differences between the DNR and City water typing procedures may in fact exist, such
differences are to be found in documents other than WAC 222-16-030 and have not been incorporated
into the City's regulatory framework. Individual segments of the Tangleberry ravine system studied by
Ms Myers will qualify for CAO buffers either because a stream exists meeting the definition stated at
BIMC 16.20.030.A(46) and such stream lies in a ravine within the meaning of BIMC 16.20.030.A(40)
and is regulated by BIMC 16.20.130.C(2)(g); or, in the absence of a regulatory ravine, because a typed
stream exists within the meaning of BIMC 16.20.030.A(47) that is subject to the Table 2 stream buffer
requirements appended to BIMC 16.20.130.C(2). Where a ravine exists without a regulated stream,
vegetation management within the ravine is permitted subject to the requirements of BIMC
16.20.150.F(6).
10. Applying the foregoing principles to the Tangleberry study segments (insofar as the record
warrants), certain regulatory conclusions can be derived. For Segments A and B where there appears to
be a ravine but no stream, no buffer is imposed and vegetation management may occur pursuant to
BIMC 16.20.150.F(6). Segment C appears to be characterized by both a ravine and a Type Np stream
as defined by BIMC 16.20.030.A(47) and is subject to either a Table 2 stream buffer or a 25 -foot buffer
from the ravine edge, whichever is greater. Some or all of Segments D and E may meet the basic
stream definition if the present artificial channels generally correspond to pre-existing natural stream
features. An unclassified stream within a regulatory ravine would be subject to the BIMC
16.20.130.C(2)(g) buffer scheme for streams in ravines. The presence of perennial flows could warrant
a Type Np classification. Due to a continuity requirement a Type Ns water classification is a less likely
outcome because it would be justified only if an above -ground channel exists either upstream to the
Segment C Type Np water or downstream to marine waters.
11. There is a limitation on the factual questions that the current appeal record permits us to resolve.
The locations of the trees that the appellants would like to manage for view protection have not been
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specified in relation to the Myers report data, so more specific view management determinations cannot
be made. The exact places where the regulatory ravine starts and ends cannot be determined from this
record. Definitive information regarding whether Segments D and E qualify as a regulated stream and,
if so, also as a typed water is lacking.
12. There are also important questions of interpretation that are implicit in the record but were not
identified as appeal issues. These are mainly questions of continuity and relationship. Based on Ms
Myers field work, it seems evident that some segments of her study area met the City's stream
definition while others did not; some stream sections were subject to the City's water typing system and
others were not; and some portions of the ravine met CAO regulatory thresholds while other fell short.
Assuming agreement that a fragmentary regime where regulatory requirements can change every few
feet serves neither public nor private purposes, how is this shifting accumulation of data to be
translated into a coherent regulatory framework? Is the regulatory ravine a unitary entity that includes
shorter intervening sections where slope or height criteria may not be fully met? Is a stream to be
classified overall based on its highest or lowest typing characteristic, or is each segment classified
separately?
13. In the absence of contrary regulatory instruction, the decision will assume that the critical areas
entities to be managed are the segments identified within Ms Myers's June 14, 2014, study. On that
basis, the current decision should provide adequate guidance if the appellants' focus is primarily on
Segments A, B and C. But to the extent that Segments D and E remain at issue, more information
would likely be needed to reach a definitive regulatory outcome. As described below, a procedure has
been provided that can accommodate a limited range of followup questions concerning Segments D
and E without necessitating a new administrative review process.
14. In terms of the appeal framework, the appellants carry the burden of proof to demonstrate that
the Director's November 18, 2014, code determination that a City -regulated stream lies within the
Tangleberry ravine was incorrect; BIMC 2.16.020.P(1)(k) provides that within an administrative review
appeal the "decision of the director shall be accorded substantial weight by the hearing examiner. "
The appellants' burden was met with respect to ravine Segments A and B, where the uncontroverted
evidence was that neither a stream channel nor flow were encountered. The appeal failed emphatically
with respect to Segment C, where both a regulatory ravine and a Type Np stream are clearly evident.
And because the evidence was inconclusive regarding the existence and extent of a stream, applicable
stream typing and a regulatory ravine, the appellants failed to sustain their burden of proof that the
City's interpretation was erroneous with respect to Segments D and E. As intimated above, Examiner
jurisdiction will be retained for the limited purpose of allowing the appellants opportunity to submit
more detailed information regarding the characterization of these two lower elevation study segments.
DECISION
The Lasser, Lane and Heins Administrative Code Interpretation Appeal (ADM 19190) is GRANTED in
part and DENIED in part, as specified above in Conclusion no. 14. Hearing Examiner jurisdiction is
hereby retained to conduct further proceedings and modify this report with respect to Tangleberry
ravine study Segments D and E, as provided within the following conditions:
1. Within 14 days of the date of this decision the appellants or their attorney may file with
the Planning Director a written notice of intent to submit a further technical study analyzing the
potential existence and locations of regulated critical areas within Tangleberry ravine study
CODE INTERPRETATION APPEAL DECISION - 9
Segments D and E. A copy of this notice shall also be provided to the Hearing Examiner's
Office.
2. If a timely notice as specified above has been received, representatives of the appellants
and the City's Planning Director shall confer and agree upon a plan for further technical study of
Segments D and E based on the code interpretations set forth in this decision. The parties may
stipulate to uncontested factual matters. If within 60 days of the filing of the notice of intent the
City and appellants have not agreed on a study plan, either party may petition the Hearing
Examiner to resolve any disputes and approve a study plan.
3. Within 14 days of completion of a technical study as agreed to or ordered, either parry
(or both) may petition the Hearing Examiner for a modification of this decision. Any such
petition should specify the changes requested and the technical bases therefor. After receipt of a
petition and the supporting technical report, the Hearing Examiner may reopen the hearing,
receive new documents and testimony, and modify the findings and conclusions of this decision
with respect to Segments D and E, as appropriate.
4. The jurisdiction retained by the Hearing Examiner over this proceeding shall terminate
without further notice under either of the two following circumstances:
A. A written notice of intent to submit further technical studies has not been
submitted within 14 days of the date of this decision as required by Condition no. 1
above, or
B. A written petition to the Hearing Examiner for a modification of this decision has
not been submitted within 14 days of the date of completion the new technical study as
specified by Condition no. 3 above.
5. A request for extension of the period for seeking judicial review of this decision will be
favorably entertained if a written notice of intent to submit further technical studies has been
timely filed in the manner required by Condition no. 1 above.
ORDERED March 30, 2015.
City of Bainbridge Island
The exhibit list prepared by the Clerk of the Hearing Examiner's Office is attached.
A party with standing may seek judicial review of this decision by filing a timely suit in Kitsap County
Superior Court under the Land Use Petition Act.
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