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BEFORE THE COLUMBIA RIVER GORGE COMMISSION JODY AKERS, PAUL AKERS, DANNY ) GAUDREN, KATHEE GAUDREN, ) CRGC No. COA-C-18-01 RACHEL GRICE, ZACHARY GRICE, ) GREG MISARTI, EDMOND MURRELL, ) Clark County No. CDE2017-Z-1069(A) KIMBERLY MURRELL, KIMI RITTER, ) WAYNE RITTER, RICHARD J. ROSS, ) NOTICE OF APPEAL KAREN STREETER, SEAN STREETER, ) and ELEANOR WARREN, ) ) Appellants, ) ) vs. ) ) CLARK COUNTY, )

) Respondent. )

I.

Notice is hereby given that Jody Akers, Paul Akers, Danny Gaudren, Kathee Gaudren,

Rachel Grice, Zachary Grice, Greg Misarti, Edmond Murrell, Kimberly Murrell, Kimi Ritter,

Wayne Ritter, Richard J. Ross, Karen Streeter, Sean Streeter, and Eleanor Warren appeal a land

use decision (“Decision”) issued by Respondent Clark County (“County”) in the above-captioned

matter. The Decision consists of four written orders issued by the Clark County Hearing

Examiner, all of which are attached as Exhibits to this Notice of Appeal:

• Exhibit A: Order on Motion to Strike (July 4, 2018) • Exhibit B: Order on Motion to Continue (July 16, 2018) • Exhibit C: Final Order (Aug. 4, 2018) • Exhibit D: Final Order on Reconsideration (Sept. 8, 2018)

Pursuant to Clark County Code § 2.51.150, the Decision became final on September 8,

2018. The Decision involves alleged land use violations (unpermitted mining and related

activities) by Judith Zimmerly, Jerry Nutter, and Nutter Corporation at 6303 SE 356th Avenue in

unincorporated Clark County, Washington.

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ADR Statement: Appellants are willing to attempt to resolve the appeal through

mediation or other alternative dispute resolution.

Shortened Record: Appellants are not willing to consider a shortened record.

Email Service: Appellants are willing to receive documents by email.

II.

Appellants are represented by Gary K. Kahn and Peggy Hennessy, who have as their

contact information:

Gary K. Kahn Peggy Hennessy Reeves, Kahn, Hennessy & Elkins 4035 SE 52nd Ave. P.O. Box 86100 Portland, OR 97286-0100 (503) 777-5473 gkahn@rke-law.com phennessy@rke-law.com

The governing body for Respondent, Clark County, has as its contact information:

Clark County Council P.O. Box 5000, Vancouver, WA 98666-5000 (564) 397-2232 marc.boldt@clark.wa.gov, jeanne.stewart@clark.wa.gov,

julie.olson2@clark.wa.gov, john.blom@clark.wa.gov, eileen.quiring@clark.wa.gov Clark County is represented by:

William Richardson, Deputy Prosecuting Attorney

Prosecuting Attorney’s Office, Civil Division 1300 Franklin St., Ste. 380 P.O. Box 5000 Vancouver, WA 98666-5000 (360) 397-2478 x4745 bill.richardson@clark.wa.gov

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III.

As held by the Clark County Hearing Examiner in the Decision (Order on Motion to

Continue at ¶ C.9), there is no Applicant in this matter.

Other persons mailed or delivered written notice of the land use decision, as indicated by

Clark County’s records in this matter, include the following:

Nathan J. Baker, Senior Staff Attorney Friends of the Columbia Gorge 333 SW Fifth Ave., Suite 300 Portland, OR 97204-1717 (503) 241-3762 x101 nathan@gorgefriends.org Attorney for Friends of the Columbia Gorge James D. Howsley

Jordan Ramis, PC 1499 SE Tech Center Pl., Ste 380 Vancouver, WA 98683-9575

(360) 567-3913 jamie.howsley@jordanramis.com Attorney for Judith Zimmerly Stephen W. Horenstein Horenstein Law Group PLLC 500 Broadway St Ste 120 Vancouver, WA 98660-3322

(360) 597-0965 steve@horensteinlawgroup.com Attorney for Jerry Nutter and Nutter Corporation

NOTICE:

Anyone designated in paragraph III of this Notice of Appeal who desires to participate as

a party in this case before the Columbia River Gorge Commission must file and serve a Motion

to Intervene in this proceeding within 14 days of the date of this Notice, as required by

Commission Rule 350-60-160. Anyone who desires to present oral argument to the Commission

must intervene and file a brief as required by Commission Rule 350-60-120(1).

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Dated: October 9, 2018 REEVES, KAHN, HENNESSY & ELKINS

By: /s/ Gary K. Kahn . Gary K. Kahn, WSBA No. 17928 By: /s/ Peggy Hennessy . Peggy Hennessy, WSBA No. 17889

Attorneys for Jody Akers, Paul Akers, Danny Gaudren, Kathee Gaudren, Rachel Grice, Zachary Grice, Greg Misarti, Edmond Murrell, Kimberly Murrell, Kimi Ritter, Wayne Ritter, Richard J. Ross, Karen Streeter, Sean Streeter, and Eleanor Warren

Exhibit A

Order On Motion to Strike, Clark County No.

CDE2017 -Z-1069(A) (July 4, 2018)

BEFORE THE HEARING EXAMINER FOR CLARK COUNTY, WASHINGTON

Regarding appeals by Judith Zimmerly , Jerry , Nutter , and Nutter Corporation of alleged violations of the Clark County Code at 6303 SE 356'h A venue in unincorporated Clark County , Washington

) ) ) )

ORDER ON MOTION TO STRIKE

CDE2017 -Z-1069(A)

A. BACKGROUND INFORMATION

I . On May 17 , 2018 , the Code Enforcement section of the Clark County Community Development Department (the "County") issued Notice and Order CDE20 17 -Z­l069(A)1 (the " N&O" , Ex . 16) to Judith Zimmerly and Jerry Nutter , Nutter Corporation (collectively " the Appellants" ).

a. Judith Zimmerly owns property located at 6303 SE 356th A venue; also known as Clark County Assessor Parcel #133044-000 (the "Property"). The Property is zoned GLSA-40 (Gorge Large-Scale Agriculture , 40-acre minimum lot size). The Property is al so within the Surface Mining Overlay District and the Columbia River Gorge Scenic Area.

b. Jerry Nutter , Nutter Corporation leases the Property from Ms. Zimmerly and is conducting surface mining activities on the Property.

c . The N&O alleges that the Appellants are:

1. Conducting mining operations and rock crushing activities on the Property without required County site plan and conditional use permits , in violation of Clark County Code ("CCC") 40.250.022(E) and 40.250 .022(F)(l) ; and

11. Conducting land alterations and sutface mining activities within the Columbia River Gorge National Scenic Area without County review and approval, in violation of CCC 40 .240 .010(8) .

2. On May 25 , 2018 , attorney James D. Howsley filed an appeal of the N&O on behalf of Judith Zimmerly (Ex. 17) and attorney Steven W. Hornstein filed a separate appeal of the N&O on behalf of Jerry Nutter and Nutter Corporation. (Ex. 18).

3 . On May 29 , 2018 , attorney Nathan Baker filed an Amended Notice of Appearance on behalf of Friends of the Columbia Gorge ("Friends") . (Ex 98). On June 18 , 2018, attorneys Gary K. Kahn and Peggy Hennessy filed a Notice of Appearance on behalf of Jody Akers, Paul Akers , Danny Gaudren , Kathee Gaudren , Rachel Grice , Greg

1 The County issued the ori ginal N&O, Notice and Order CDE201 7-Z - 1069, on March 29 , 2018 . (Ex . 15). The County withdrew that Noti ce and Order and issued an amended Noti ce and Order, CDE201 7-Z-1069(A ), on May 17,201 8.

Hearing Examiner Order 0 11 Motion to Strike Appeal of N & 0 CDE201 7-Z-1069(A) (Washougal Pit) Page I

Misarti , Edmond Murrell , Kimberly Murrell , Kimi Ritter , Wayne Ritter , Richard J. Ross , Karen Streeter , Sean Streeter , and Eleanor Warren (collectively " Neighbors") . (Ex. 99) ?

4. On June 15 , 2018 , Mr. Howsley filed a Motion to Strike the Notices of Appearance by Friends and Neighbors. (Ex. 96). Mr. Kahn , Ms. Hennessy , and Mr. Baker filed a Response to Mr. Howsley ' s Motion to Strike on June 18 , 2018 (Ex 97) . Mr. Hornstein filed a Motion in Support of Mr. Howsley 's Motion to Strike on June 26 , 2018. (Ex 10 I) . Attorneys for Appellants , Friends , and Neighbors also appeared and presented oral arguments on thi s issue at the June 28 , 2018 , hearing. This Order is the examiner ' s response to Mr. Howsley 's Motion to Strike.

B. ISSUES

Whether Friends and Neighbors are entitled to participate as pa1ties to this enforcement hearing .

C. OPINION

I. CCC 32.08.010 and 32.08.020 authorize the "director"3 to commence an administrative notice and order proceeding whenever the director has reason to believe that a use or condition exists in violation of any land use or public health ordinance , or rules and regulations adopted thereunder.

2. CCC 32.08 .040( I) provides , "Any person aggrieved by the order of a director may request in writing within ten (10) days of the service of the notice and order an appeal hearing before the Clark County Hearing Examiner."

3. CCC 32.08 .020(6) provides , in relevant part , " ltlhe order shall become final unless , no later than ten (1 0) days after the notice and order are served, any person aggrieved by the order requests in writing an appeal before the Hearing Examiner."

4. CCC 32.08.040(2) requires that written notice of the hearing be provided , " ltlo each appealing party, to the director whose order is being appealed , and to other interested persons who have requested in writing that they be so notified."

~ Mr. Kahn and M s. Hennessy's June 18 , 2018 , Notice of Appearance is labeled " Amended Notice of Appearance" . However their ori ginal Notice of Appearance is not included in the record before the examiner. 3 CCC 32 .04.01 0(2) provides:

" Director" as used in thi s title shall mean the director of public works, director of community development, or director of public hea lth , or such other person as the county council shall by ordinance authori ze to utili ze the provisions of thi s titl e and shall also include any duly authorized representati ve of such director. " Director" shall also mean the " local health officer" as that term is used in Chapter 70.05 RCW.

Hearing Examiner Order on Motion to Strike Appeal of N & 0 CDE201 7-Z- 1069(A) (Washougal Pit) Page 2

5. CCC 32.08.040(4) provides that "Each party shall have !certain specified rights to participate in the hearing . I"

6. CCC 32.08.040 provides that appeals of Notice and Orders "lslhall be conducted in accordance with Washington Administrative Code Chapter 1-08 , 'Uniform Procedural Rules ' ... ," with the exception of certain specified sections. WAC 1-08 was repealed and replaced by WAC 10-08, the "Model Rules of Procedure." However the Code has not been amended to expressly reference WAC 10-08 .

7. The Code does not define the term " party." Therefore the examiner must interpret the Code to determine what the Clark County Council (the "Council") intended this term to mean . The examiner must look to the entire ordinance where this term is found as well as related ordinances to determine the meaning of this term. If the term is susceptible to more than one reasonable interpretation, it is ambiguous, and the examiner may resort to statutory construction, legislative history , and relevant case law. The ordinances must be read in harmony and each must be given effect. City of Kent v. Mann , 161 Wash.App. 126, 253 P.3d 409,410 (2011). When the same words are used in related ordinances, the examiner must presume that the Council intended the words to have the same meaning . Conversely, when different words are used in the same ordinance to deal with related matters , the examiner must presume that the Legislature intended those words to have different meanings. State v. Keller, 98 Wash.App. 381 , 990 P.2d 423,425 (1999). In addition, the examiner must interpret the ordinance so that all language is given effect with no portion rendered meaningless or superfluous. State v. One 1999 Ford F350 Diesel Pickup Truck, 182 Wash.App. 469,331 P.3d 102 , 103 (Wash. App., 2014).

8 . CCC 32.08.040(2) identifies three separate entities that are entitled to notice of the hearing: the "appealing party ," the "director ," and "other interested persons." Therefore the examiner must interpret the Code to give different meaning to these different terms. Both appealing pa1ties and interested persons are entitled to notice of the hearing. CCC 32.08.040(2). However only a "party" is entitled to participate in the hearing. CCC 32.08.040(4). Because the Council used the same term "appealing party" and "party" in both ordinances, the examiner must give these words the same meaning. The term "party" in CCC 32.08.040(4) must be limited to the "appealing party ," persons who filed an appeal of the N&O pursuant to CCC 32.08.040(1), and the director , who filed the N&O that is being appealed.

9. In this case , the only "appealing parties" are the appellants- Judith Zimmerly, Jerry Nutter and Nutter Corporation. They each filed appeals of the N&O within the ten day deadline provided by CCC 32.08.040(1). Although Friends and Neighbors argue that they were "aggrieved" by the N&O , they did not file an appeal. Therefore Friends and Neighbors are not a " party" entitled to participate in the hearing pursuant to CCC 32.08 .040(4) .

Hearing Examiner Order on Motion to Strike Appeal ofN & 0 CDE201 7-Z-1069(A) (Washougal Pit) Page 3

a. Absent the parties' timely appeals , the N&O would become final and there would be no appeal proceeding for the " party" or "interested persons" to participate in . CCC 32.08.020(6).

b. Assuming Friends and Neighbors were "aggrieved" by the N&O as they claimed at the hearing , they could have filed their own appeals of the N&O pursuant to CCC 32.08.040(1) . They did not do so. Therefore they are not "parties" entitled to participate in the appeal hearing.4

I 0 . WAC 10-08-083 , cited by Friends and Neighbors , does not support an alternative interpretation of the term " party" .5 WAC 10-08-083 requires that attorney ' s representing "a party" file a written notice of appearance . This section of the WAC does not provide a definition of the term "party ." Therefore the WAC does not affect the above analysis.

II. Therefore the examiner grants Appellant Judith Zimmerly ' s Motion to Strike the Notice of Appearances by Friends and Neighbors , because they are not " parties" entitled to participate in this appeal hearing. Participation in the appeal hearing is limited to the County and the Appellants.

a . At the hearing Friends and Neighbors submitted a " Hearing Brief of Interested Parties Friends of the Columbia Gorge , Et AL." The examiner provisionally accepted that submittal , pending a ruling on the Appellants' motion . Because based on this Order , Friends and Neighbors are not parties to this appeal proceeding the "Hearing Brief of Interested Parties Friends" the examiner's provisional acceptance of this Brief is withdrawn and the Brief is excluded from the record in thi s case .

12. This ruling will not prevent the County from calling neighboring residents and property owners as witnesses , to the extent such testimony is relevant to the issue before the examiner. The County is clearly a party entitled to call and examine witnesses on any matter relevant to the issues of the hearing pursuant to CCC 32.08.040(4)(i).

13 . The examiner is withholding ruling on Friends and Neighbors ' request to file amicus briefs , because the Appellants have not had the opportunity to present arguments on that issue. The examiner notes that the Courts have allowed the filing of amicus briefs at the trial court level. Parsons v. State , 129 Wash.App. 293 , 118 P.3d 930 , 934 (2005).

4 The examiner makes no ruling on whether Friends and Neighbors are actually aggrieved by the N&O and therefore would have standing to appeal the N&O. The ten day period for filing an appeal of the N&O has expired. Therefore there is no need to resolve that issue here. 5 The examiner assumes for purposes of thi s analysis that WAC l 0-08 applies to thi s proceeding. The examiner makes no ruling on the applicability of thi s regulation in thi s proceeding.

Hearing Excuniner Order on Motion to Strike Appeal oj N & 0 CDE201 7-Z- !069(A) (Washougal Pit) Page 4

D. ORDER

Appellant Judith Zimmerly's Motion to Strike the Notice of Appearances by Friends and Neighbors is GRANTED . Participation in the N&O appeal hearing is limited to the County and the Appellants , Judith Zimmerly , Jerry Nutter, and Nutter Corporation.

Hearing Examiner Order on Mo tion to Strike Appeal ofN & 0 CDE20! 7-Z-1069(A) (Washougal Pit) Page5

CERTIFICATE OF MAILING

I, Joe Turner, certify that on this day I emailed and mailed a true copy of the HEARING EXAMINER'S ORDER ON MOTION TO STRIKE in the matter of Notice and Order CDE2017-Z-1069(A) (Washougal Pit) on the followin g persons:

James Howsley Jordan Rami s PC 14990 SE Tech Center Pl. , #380 Vancouver, W A 98683 jw11ie .hoH:slev@jordanramis .com

Attorney for Judith Zimmerly

Gary K. Kahn and Peggy Hennessy Reeves, Kahn , Hennessy & Elkins P.O. Box 86100 Portland , OR 97286-0100 gkhan @ rke- law .com Qhenness @rke-law.com

Attorneys for Neighbors

Bill Richardson

Steve Hornstein Hornstein Law Group PLLC 500 E. Broadway , Suite 120 Vancouver, W A 98660 steve@ hornsteinlawgrouf2 .com

Attorney for Nutter Corporation

Nathan Baker Friends of the Columbia Gorge 333 SW 5' 11 A venue , Suite 300 Portland , OR 97204- 1717

Clark County Deputy Prosecuting Attorney 1013 Franklin Street Vancouver, WA 98660 bill.richardson@clark.wa. ov

Attorney for Clark County

Hearing Examiner Order on Motion to Strike Appeal ofN & 0 CD£20 17-Z- 1069(A) (Washougal Pit) Page 6

Exhibit B

Order on Motion to Continue, Clark County No.

CDE2017 -Z-1069(A) (July 16, 2018)

BEFORE THE HEARING EXAMINER FOR CLARK COUNTY, WASHINGTON

) ORDERON Regarding appeals by Judith Zimmerly , Jerry , Nutter , and Nutter Corporation of alleged violations of the Clark County Code at 6303 SE 356'11 Avenue in unincorporated Clark County , Washington

) MOTION TO CONTINUE ) ) CDE2017-Z-1069(A)

A. BACKGROUND INFORMATION

I . On May 17 , 2018 , the Code Enforcement section of the Clark County Community Development Department (the "County") issued Notice and Order CDE20 17-Z-1069(A)1 (the " N&O" , Ex . 16) to Judith Zimmerly and Jerry Nutter , Nutter Corporation (coli ecti vel y " the Appell ants").

a . Judith Zimmerly owns property located at 6303 SE 356'11 Avenue ; also known as Clark County Assessor Parcel #133044-000 (the "Prope1ty"). The Prope1ty is zoned GLSA-40 (Gorge Large-Scale Agriculture , 40-acre minimum lot size). The Property is also within the Surface Mining Overlay District and the Columbia River Gorge Scenic Area .

b. Jerry Nutter, Nutter Corporation leases the Property from Ms. Zimmerly and is currently conducting surface mining activities on the Property.

c. The N&O alleges that the Appellants are:

1. Conducting mining operations and rock crushing activities on the Property without required County site plan and conditional use permits, in violation of Clark County Code ("CCC") 40.250.022(E) and 40.250.022(F)( I) ; and

11. Conducting land alterations and Slllface mining activities within the Columbia River Gorge National Scenic Area without County review and approval, in violation of CCC 40.240 .0 lO(B).

2 . On May 25 , 2018, attorney James D . Howsley filed an appeal of the N&O on behalf of Judith Zimmerly (Ex. 17) and attorney Steven W. Hornstein filed a separate appeal of the N&O on behalf of Jerry Nutter and Nutter Corporation. (Ex. 18). The County scheduled a hearing regarding the appeal at 2:30p.m . on June II, 2018 and provided hearing notices to the appellants. (Exhibits 19 and 20).

3 . Prior to the June II , 2018 hearing the County provided the examiner with a large packet of exhibits (Exhibits I through 94) . The County did not simultaneously

1 The County issued the ori ginal N&O, Notice and Order CDE201 7-Z- 1069, on March 29 , 2018 . (Ex. 15). The County withdrew that Notice and Order and issued an amended Noti ce and Order, CDE201 7-Z-1069(A) , on May 17, 2018 .

Hearing Examiner Order on Motion to Continue Appeal of N & 0 CDE201 7-Z- / 069(A) (Washougal Pit) Page I

provide the appell ants with copies of these exhibits. The attorneys representing neighboring residents and the Friends of the Columbia Gorge contacted the County Prosecutors Office and requested copies of the County' s proposed exh ibits prior to the hearing and the County provided those copies. (Appellants' Motion)?

4. Clark County hearing examiner Joe Turner (the "examiner") held a hearing regarding the appeal on June 28,20 18 . The examiner received argument and testimony from representatives of the County and the appell ants regarding procedural motions and the issues on appeal. The appellants, and the attorneys representing neighboring residents and the Friends of the Columbia Gorge presented additional evidence and legal memoranda . (Hearing Record) . The County did not provide copies of its submittals to the appellants. The appellants requested the County provide copies of all exhibits "as soon as possible." (Appell ants' Motion).The examiner also received argument from attorneys representing neighboring residents and the Friends of the Columbia Gorge regarding procedural motions. After all pa1ties and interested persons had an initial opportunity to testify , the examiner received response testimony from the County. However , due to another previously scheduled hearing in the same room , the examiner was unable to receive response testimony from the appellants. Therefore the examiner continued the hearing to July 17 ,2018 at 6:00p.m.

5. At some point the appellants requested copies of the record through a Public Records Request. The County Prosecuting Attorney's Office and the County Code Enforcement Section were not aware of that request prior to the hearing. (County Reply) .

6. On July I 0 , 2018 the County provided the appellants with copies of the entire record . (Appellants' Motion and County Reply) .

7 . On July II , 2018, the appellants' attorneys filed a Motion to Continue the Hearing , arguing that the County fai led to provide them with copies of the exhibits that were submitted at the hearing in a timely manner. (Appell ants' Motion). The County submitted a Response to the appellants' Motion on July 13 ,2018. 3 (County Reply). This Order is the examiner's response to the appel lants' Motion to Continue and the County's Response.

B. ISSUES

Whether a continuance of the continued enforcement hearing is warranted to allow the appellants an adequate opportunity to review and respond to the information the County submitted at the hearing.

2 It is unclear what Exhibit numbers w ill apply to the appell ants' Motion and the County's Repl y. Therefore the examiner refers to the titles of these exhibits rather than exhibit numbers.

3 The examiner received the appell ants ' motion and the County 's response after 2:00p.m. on Friday July 13, 20 18.

Hearing Examiner Order on Motion to Continue Appeal ofN & 0 CD£20 ! 7-Z-1069(A) (Washougal Pit) Page 2

C. OPINION

I. CCC 32.08.010 and 32.08.020 authorize the "director"4 to commence an admin istrative notice and order proceeding whenever the director has reason to believe that a use or condition exists in violation of any land use or public health ordinance, or rules and regulations adopted thereunder.

2. CCC 32.08.040(1 ) provides, "Any person aggrieved by the order of a director may request in writing within ten ( 1 0) days of the service of the notice and order an appeal hearing before the Clark County Hearing Examiner."

3. CCC 32.08.040(2) provides:

The appeal hearing shall be conducted on the record and the hearing examiner shall have such rulemaking and other powers as were available to the director originally. Such appeal hearing shall be conducted within a reasonable time after receipt of the request for appeal. Written notice of the time and place of the hearing shall be given at least ten ( I 0) days prior to the date of the hearing to each appealing party , to the director whose order is being appealed, and to other interested persons who have requested in writing that they be so notified ."

4. CCC 32.08.040(4) provides that "Each party shall have the following rights, among others: (i)

(ii) (iii)

(iv) (v) (vi)

To call and examine witnesses on any matter relevant to the issues of the hearing; To introduce documentary and physical evidence; To cross-examine opposing witnesses on any matter relevant to the issues of the hearing; To impeach any witness regardless of which party first called him to testify; To rebut evidence against him ; To represent himself or to be represented by anyone of hi s choice who is lawfully permitted to do so.

5. Although not explicitly required by the Code, the examiner finds that all parties should have provided copies of all submittals to the other party . This is standard practice in any legal proceeding. It was highly irregular for the County to provide copies of its submittal s to the examiner without providing copies to the appellants,

4 CCC 32.04.0 I 0(2) provides:

" Director" as used in this title shall mea n the director of public works , director of community development, or director of public health , or such other person as the county counci l shall by ordinance authorize to utili ze the prov isions of thi s title and shall also include any dul y authori zed representative of such director. " Director" shall also mean the " local health officer" as that term is used in Chapter 70.05 RCW .

Hearing Examiner Order on Motion to Continue Appeal ofN & 0 CD£20 / 7-Z-1069(A) (Washougal Pit) Page 3

either simultaneously or in advance of the hearing. The appellants could have contacted the County Prosecuting Attorney's Office to request copies of the record , rather than filing a public records request. But such a request should not be necessary. The County should have provided all parties with copies of any written argument or evidence submitted to the examiner as a matter of course.

6. In addition, the examiner understands and agrees with the appellants' exasperation with the County's failure to respond to the appellants' assertion that the mine use is allowed to continue as a legal nonconforming use. The appellan~s clearly raised this issue in their response to the Notice and Order. However the County did not provide a response to that argument until the hearing, making it very difficult for the appellants and the examiner to prepare for the hearing .

7. However, the examiner finds that , despite these irregularities, a continuance is not warranted in thi s case. The majority of the exhibits provided by the County were copies of documents provided by or readily available to the appellants: historic aerial photos of the site , copies of Department of Natural Resources ("DNR") annual permits , a decision from the Columbia River Gorge Commission approving expansion of mining activities on the site , etc. The County did not provide any written legal argument. Therefore any delay in providing the appellants with copies of the record did not impact the appellants' ability to prepare for the July 17 ,2018 continued hearing.

8. The County argued that the appellants are required to pay a fee for the continued hearing, citing Sections 6.110A.010 and 2.51.120 of the Clark County Code ("CCC"). CCC 6.110A.OJO provides, in relevant part:

G. Continuance of Hearing3

For any hearing postponed or continued, as requested by the applicant after legal notice has been given; PROVIDED, that this requirement shall not apply (I) where the request is based upon new information presented at the hearing other than from the applicant or (2) when renoticing of the hearing is requested and approved. 3

3 Written request for resched uling and renoticing of the hearing will be accepted by the appl icant if fi led within fourteen ( 14) days of the original public hearing notice mailing. After this fourteen ( 14) day period on ly requests for a hearing con tinuance will be accepted.5

CCC 2.5 1.120 provides:

Continuances. Once legal notice has been given , no matter shall be postponed over the objection of any interested party , except for good cause shown.

5 Footnote in original.

Hearing Examiner Order on Mo tion to Continue Appeal ofN & 0 CD£20! 7-Z- /069(A) (Washougal Pit) Page 4

Continuances may be granted at the discretion of the examiner; provided , the interested parties in attendance shall be given an opportunity to testify prior to the continuance. The applicant shall pay the fee amount identified in Section 6. U OA.()JS) for any hearing postponed or continued by request of the applicants after legal notice has been given; provided , that this requirement shall not apply where the request is based upon new information presented at the hearing. (Sec. 12, Res. 1979-04-56; amended by Sec. 3 ofOrd. 1981-01-06; amended by Sec. 7 of Ord. 1995-08-23; amended by Sec. I of Ord. 2004-06-11)

9. The examiner finds that these provisions are inapplicable in this case. These sections require "the applicant" to pay a continuance fee. There is no "applicant" in this code enforcement proceeding. The examiner finds that the code enforcement process is very similar to a criminal proceeding; the County is prosecuting the appellants for alleged violations of the Clark County Code. To require an appellant to pay a fee to continue a hearing in order to allow additional time to respond to information submitted by the County would violate the appellant ' s right to due process.

D. ORDER

1. Appellants' Motion to Continue the Hearing is DENIED.

2. The County orders all parties to simultaneously provide all other parties with copies of any exhibits, legal memoranda , or other documents submitted to the examiner.

Hearing Examiner Order on Motion to Continue Appeal of N & 0 CDE201 7-Z- /069(A) (Washougal Pit) Page5

CERTIFICATE OF MAILING

I, Joe Turner , certify that on this day I emailed and mailed a true copy of the HEARING EXAMINER'S ORDER ON MOTION TO CONTINUE THE HEARING in the matter of Notice and Order CDE2017-Z-1069(A) (Washougal Pit) on the following persons:

James Howsley Jordan Rami s PC 14990 SE Tech Center Pl. , #380 Vancouver, WA 98683 ·amie .howsle @ ·ordanramis .com

Attorney for Judith Zimmerly

Bill Richardson

Steve Hornstein Hornstein Law Group PLLC 500 E. Broadway , Suite 120 Vancouver, WA 98660 steve@hornsteinlaw rou .com

Attorney for Nutter Corporation

Clark County Deputy Prosecuting Attorney 1013 Franklin Street Vancouver, WA 98660 bill.richardson@clark .wa. ov

Attorney for Clark County

Hearing Examiner Order on Motion to Continue Appeal ofN & 0 CD£20 !7-Z- /069(A) (Washougal Pit) Page 6

Exhibit C

Final Order, CDE2017 -Z-1069(A)

(Aug. 4, 2018)

Exhibit D

Final Order on Reconsideration,

CDE2017 -Z-1069(A) (Sept. 8, 2018)

BEFORE THE HEARINGS EXAMINER FOR CLARK COUNTY, WASHINGTON

Regarding appeals by Judith Zimmerly and Jerry ) FINAL ORDER ON Nutter, Nutter Corporation of alleged violations ) RECONSIDERATION of the Clark County Code at 6303 SE 356th Avenue ) NOTICE & ORDER in unincorporated Clark County, Washington ) CDE2017-Z-1069(A)

A. SUMMARY

1. On May 17, 2018 Clark County issued Notice and Order CDE2017-Z-1069(A) (the

"N & O", Exhibit 16) to Judith Zimmerly and Jerry Nutter, Nutter Corporation (the "Appellants"). The N&O alleged that the Appellants were: a. Conducting surface mining operations and rock crushing activities on property

located at 6303 SE 356th Avenue, also known as Clark County Assessor Parcel #133044-000 (the "Property"), without required County site plan and conditional use permits, in violation of Clark County Code (“CCC”) 40.250.022(E) and 40.250.022(F)(1); and

b. Conducting land alterations and surface mining activities on the Property within

the Columbia River Gorge National Scenic Area without County review and approval, in violation of CCC 40.240.010(B).

2. The Appellants appealed the N&O on May 25, 2018 (Exhibits 17 and 18). The

examiner considered the appeal at duly noticed public hearings on June 28 and July 17, 2018.

3. On August 4, 2018 Clark County Hearing Examiner Joe Turner (the "examiner")

issued a Final Order:

a. Granting the appeals, in part, and dismissing that portion of the N&O alleging violations of CCC 250.022.E, 40.250.022.F(1), and CCC 40.240.010.B for conducting surface mining operations on the Property; and

b. Granting the appeals, in part, and affirming that portion of the N&O alleging

violations of 250.022.E, 40.250.022.F(1), and 40.240.010.B for conducting rock crushing activities on the Property; and further:

c. Ordering the Appellants to cease all rock crushing activities on the Property, unless and until the Appellants obtain a CUP from the County authorizing rock crushing activities.

4. On August 17, 2018 the Appellants filed a request for reconsideration of the

examiner’s Final Order (Exhibit 136). The Appellants argued that:

a. “The County failed to adequately raise the argument that nonconforming use rights to undertake rock crushing on the Property were lost pursuant to CCC 40.240170.D(4)(c);

b. New evidence has been discovered which shows the nonconforming use rights to

conduct rock crushing at the Washougal Pit were not lost pursuant to CCC 40.240170.D(4)(c); [and]

Hearing Examiner Final Order on Reconsideration Appeal of N & O CDE2017-Z-1069(A) (Washougal Pit) Page 2

c. There is substantial evidence in the record which demonstrates that the nonconforming use rights to conduct rock crushing activities at the Washougal Pit were not lost pursuant to CCC 40.240170.D(4)(c).”

5. The County responded to the Appellants Motion for Reconsideration on August 30,

2018. (Exhibit 137). 6. Based on the findings provided or incorporated herein, the examiner denies the

Appellants’ reconsideration request.

B. DISCUSSION

1. CCC 2.51.060(1)(c) provides: Grounds. A motion for reconsideration shall identify specific authority within the Clark County Code or other applicable law, and/or specific evidence, in support of reconsideration. A motion may be granted for any one of the following causes that materially affects the rights of the moving party: (i) Procedural irregularity or error, clarification, or scrivener’s error, for

which no fee will be charged; (ii) Newly discovered evidence, which the moving party could not with

reasonable diligence have timely discovered and produced for consideration by the examiner;

(iii) The decision is not supported by substantial evidence in the record; or (iv) The decision is contrary to law.

2. The examiner finds that the Appellants assertion that, “the County failed to

adequately raise the argument that nonconforming use rights to undertake rock crushing on the Property were lost pursuant to CCC 40.240170.D(4)(c)” exceeds the limited scope of reconsideration.

a. The examiner finds that this assertion can only fall within the scope of CCC

2.51.060(1)(c)(i), procedural irregularity or error. However, the examiner finds that was no procedural irregularity or error. The N&O cited the Appellants for conducting surface mining and rock crushing without required site plan and Conditional Use Permit (“CUP”) approvals. At the hearings, the Appellants asserted that such approvals were not required, because these activities were allowed to continue as legally established uses pursuant to CCC 40.240.170.D(4). Therefore, the examiner finds that the applicability of CCC 40.240.170.D(4) was clearly within the scope of the appeal and the Appellants had ample opportunity to address this standard. Therefore, there was no procedural irregularity or error and this assertion provides no basis for reconsideration.

3. The Appellants asserted that they discovered new evidence (photos) showing that the

nonconforming use rights to conduct rock crushing on the Property were not lost; “Specifically, ground photos show that a cone crusher and screening plant were operated by Zimmerly Rock Products in 1991.” However, the Appellants failed to include the photos with their request for reconsideration. Therefore, the examiner cannot consider this “new evidence” in this reconsideration proceeding. The Appellants’ statements that such photos exist does not support reconsideration of the examiner’s decision.

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4. The Appellants assert that the examiner’s finding that, “There is no evidence of any rock crushing activity on the Property during the five years before the Management Plan was adopted, between 1986 and 1991” (Section F.5 of the Final Order) is not supported by substantial evidence in the record. CCC 2.51.060(1)(c)(iii). The Appellants assert that the February 1991 aerial photo (Attachment A1-11 of Exhibit 104) shows a portable rock crusher on the Property.

5. The examiner finds that the Appellants’ assertion that the rectangular object located to the northeast of the “barn” on the Property is new evidence that exceeds the limited scope allowed by CCC 2.51.060(1)(c)(ii).

a. There is no dispute that Attachment A1-11 of Exhibit 104 was included in the

record before the examiner. However, the Appellants assertion that the photo shows evidence of a portable rock crusher on the Property is new evidence. As the Appellants acknowledge, the February 1991 aerial photo is of limited resolution. The examiner can discern a rectangular object located to the northeast of the “barn” on the Property. However, the examiner cannot identify any details about the object, other than its rectangular shape. Based on the photo alone, the examiner cannot find that the object shown is a portable rock crusher. At no time during the hearings did the Appellants assert that the rectangular object visible in the photo is a portable rock crusher.

6. In order to consider new evidence on reconsideration, the moving party must

demonstrate that the evidence could not, with reasonable diligence, have been discovered and produced for consideration by the examiner. CCC 2.51.060(1)(c)(ii). In this case the Appellants failed to make that showing. The aerial photo at issue was in the record. The Appellants had the opportunity to assert during the hearings that the rectangular object visible in the 1991 aerial photo is a portable rock crusher, but they did not do so. The Appellants failed to demonstrate why this assertion could not, with reasonable diligence, have been discovered and produced for consideration by the examiner during the hearings. Therefore the examiner cannot consider this new evidence in this reconsideration proceeding.

D. CONCLUSION

Based on the above findings and discussion, the examiner concludes that reconsideration is not warranted based on the standards listed in CCC 2.51.060(1)(c) and the motion for reconsideration should be denied.

E. DECISION The examiner hereby denies the Appellants’ motion for reconsideration. The examiner’s August 4, 2018 Final Order remains undisturbed.

DATED this 8h day of September 2018.

Joe Turner, AICP (electronic signature) Clark County Hearing Examiner

Hearing Examiner Final Order on Reconsideration Appeal of N & O CDE2017-Z-1069(A) (Washougal Pit) Page 1

CERTIFICATE OF MAILING

I, Joe Turner, certify that on this day I mailed a true copy of the HEARING EXAMINER’S FINL ORDER in the matter of Notice and Order CDE2017-Z-1069(A) (Washougal Pit) on the following persons:

Dated September 8, 2018

Joe Turner (electronic signature) Clark County Hearing Examiner

James Howsley Jordan Ramis PC 14990 SE Tech Center Pl., #380 Vancouver, WA 98683 Attorney for Judith Zimmerly

Steve Horenstein Horenstein Law Group PLLC 500 E. Broadway, Suite 120 Vancouver, WA 98660 Attorney for Nutter Corporation

Bill Richardson Clark County Deputy Prosecuting Attorney 1013 Franklin Street Vancouver, WA 98660 Attorney for Clark County

CERTIFICATE OF SERVICE

I hereby certify that on October 9, 2018, I served a true and correct copy of this Notice of

Appeal by email on the following persons:

William Richardson Deputy Prosecuting Attorney Prosecuting Attorney's Office, Civil Division Clark County bill.richardson@c1ark.wa.gov

Attorney for Clark County

Nathan J. Baker, Senior Staff Attorney Friends of the Columbia Gorge nathan@gorgefriends.org

Attorney for Friends of the Columbia Gorge

Dated: October 9, 2018

By:

James D. Howsley Jordan Ramis, PC jamie.howsley@jordanramis.com

Attorney for Judith Zimmerly

Stephen W. Horenstein Horenstein Law Group PLLC steve@horensteinlawgroup.com

Attorney for Jerry Nutter and Nutter Corporation