PLN52091_SUB - COBI HE Decision on Reconsideration. ClarificationBEFORE THE HEARING EXAMINER
BAINBRIDGE ISAND, WASHINGTON
In the Matter of the Application of ) No. PLN52091 SUB
Baker Hill 7 )
For ) SUPPLEMENTAL FINDINGS, CONCLUSIONS
Preliminary Subdivision ) & DECISION ON RECONSIDERATION/CLARIFICATION
_________________________________)
SUMMARY OF ORIGINAL DECISION, SUPLEMENTAL DECISIONS, & PROCEDURAL HISTORY
The City of Bainbridge Island Interim Hearing Examiner conducted a virtual open record public hearing
on the above-referenced application on January 11, 2024. The record was held open through January 16,
2024, to allow members of the public to submit written comments, and for submittal of two exhibits
referred to at hearing. The record closed on January 16, 2024.
On January 30, 2024, the requests by Applicants’ Agent Green Canopy Homes for 1) approval of a
preliminary plat to subdivide two currently undeveloped lots into seven single family residential lots,
with each lot containing a single-family residence and a detached accessory dwelling unit, 2) two
requests for Administrative Departures were APPROVED subject to conditions (“Original Decision”).
After the Original Decision issued, the City of Bainbridge Island (“COBI”) discovered that that two post-
hearing comments had been timely submitted and a third comment was submitted on an undetermined
date. The Interim Hearing Examiner admitted the three post hearing comments as Exhibit 33, Exhibit 34
and Exhibit 35. Notice was given that the COBI and Applicants had the opportunity to submit response if
they chose, by February 9, 2024, and a Supplement Decision would follow on February 9, 2024. A copy of
that Notice was admitted as Exhibit 37.
The COBI submitted its Response on February 6, 2024. Exhibit 38. The Applicants & Agent submitted a
Response on March 6, 2024. Exhibit 39. One additional comment was submitted on February 7, 2024
which the Interim Hearing Examiner declined to admit. Exhibit 401.
On February 9, 2024, a Supplement Decision issued to address the timely, post-hearing comments. Six
revised or new conditions of approval were added by the Supplemental Decision.
On February 22, 2024, Applicants filed a Request for Reconsideration/ Clarification. The Reconsideration
was limited to Revised Condition 17.C, which requires the written concurrence of the owners of the two
adjacent properties to the south which are benefited by the existing driveway (currently Adjacent
Owners Mr. & Mrs. Sircoloumb and Mr.& Mrs. Keyes) prior to final plat approval. Parties were given until
March 4, 2024, to submit responses to the Reconsideration/ Clarification request, later extended at the
Applicants’ request to March 8, 2024.
1 This Ruling was initially numbered Exhibit 37, and subsequently numbered as Exhibit 40.
DECISION ON RECONSIDERATION
Bainbridge Island Interim Hearing Examiner
Baker Hill 7 Subdivision Application - 2 -
RECONSIDERATION
Based on the record developed through the open record hearing process, the post-hearing Exhibits
admitted to the record, the Request for Reconsideration, and the responses submitted in Response to
the Reconsideration Request and admitted to the record, the Interim Hearing Examiner enters the
following Findings and Conclusions on Reconsideration.
SUPPLEMENTAL FINDINGS
1.All findings of the Hearing Examiner’s Original Decision and Supplemental Decision remain
undisturbed and are supplemented herein. All definitions and abbreviations in the Original
Decision apply herein.
2.On February 22, 2024, Applicants filed a Request for Reconsideration/ Clarification. The
Reconsideration was limited to Revised Condition 17.C, which requires the written concurrence
of the owners of the two adjacent properties to the south which are benefited by the existing
driveway (currently Adjacent Owners Mr. & Mrs. Sircoloumb and Mr.& Mrs. Keyes) prior to final
plat approval. Parties were given until March 4, 2024, to submit responses to the
Reconsideration/ Clarification request.
3.Submittals on Reconsideration are admitted to the record and assigned Exhibit numbers as
stated herein.
4.Responses to the Reconsideration/Clarification Request were submitted to the Interim Hearing
Examiner on March 4, 2024, from:
➢COBI - Exhibit 1 Recon.2
➢Applicants – The Swiggetts- Exhibit 2 Recon.
➢Neighbors – The Keyes & The Sircoloumbs- Exhibit 3 Recon.
5.On March 4, 2024, Applicants’ Agent Green Canopy Homes submitted to the Interim Hearing
Examiner (1) a request to extend the deadline to respond to Applicants’ Request for Clarification
from March 4 to March 8, 2024, and (2) additional response on the substance of the Hearing
Examiner’s February 9, 2024, Supplemental Decision. (Exhibit 4 Recon.)
6.On March 4, 2024, the Applicants’ request to extend the deadline to respond to Applicants’
Request for Clarification to March 8, 2024, was granted, with notice that the Interim Hearing
Examiner would issue a Decision on Clarification on March 14, 2024. (Exhibit 5 Recon.)
7.On March 8, 2024, Applicant Nelda Swiggett submitted a Response. (Exhibit 6 Recon.)
8.On Sunday, March 10, 2024, one additional response from Applicants’ Agent was provided,
having been timely submitted but which was unavoidably delayed in transmitting to the Interim
2 It was suggested on transmittal that Applicant’s Agent - Green Canopy- submitted a response to the
reconsideration on March 4, 2024, however this was a copy of the Reconsideration Request.
DECISION ON RECONSIDERATION
Bainbridge Island Interim Hearing Examiner
Baker Hill 7 Subdivision Application - 3 -
Hearing Examiner. (Exhibit 7 Recon.) As a result, notice was given that the Interim Hearing
Examiner would issue a Decision on Clarification on or before March 20, 2024, which date was
eight (8) business days from the date of the last submission (“Update”). (Exhibit 8 Recon.) The
COBI provided a copy of the Update to all interested parties which submitted responses,
including those noted above.
9. Exhibit 18 is the Subdivision Guarantee for the proposed plat and associated property deeds of
record. That Subdivision Guarantee, at page 4 of 6, Record Matter No. 19, reflects that the
Applicants trace ownership of the property through a Contract of Sale, where the terms and
conditions show Seller as Robert A. Zingleman and Ruth N. ZIngleman, husband and wife and
Purchaser as John V. Christiansen and Suzanne H. Christiansen, husband and wife, which was
recorded on August 8, 1974, under Auditor’s File No.: 1079442. The Purchaser's interest is now
held of record by Applicant Nelda Christiansen Swiggett, as their separate estate.
10. Exhibit 18, at page 2 of 6 shows as Record Matter No. 1, and as reflected in the above referenced
Contract of Sale, evidence that the Applicants’ property is subject to an Easement for ingress and
ingress: “Easement, and the terms and conditions thereof, affecting a portion of said premises
and for the purposes hereinafter stated, as disclosed by instrument recorded on August 8, 1974,
under Auditor's File No(s). 1079443, for: Ingress and egress.” The properties owned by the Keyes
and the Sircoloumbs are the current beneficiaries of ingress and egress easement.
11. The Applicants Swiggett do not dispute that “The Keyes and the Sircoloumbs are grantees of a
non-exclusive driveway easement to access their property.” (Exhibit 2 Recon.) The Swiggetts do
not dispute that the ingress egress driveway has existed for many years. “Both we and our
neighbors have used the shared driveway over many years without incident.” (Exhibit 2 Recon.)
12. The Applicants Swiggett and their Agent emphasize the extensive outreach made to neighbors
during the planning process. (Exhibit 2 Recon and Exhibit 7 Recon.) The Swiggetts point out that
“the Project proposal for the realignment of the driveway into the existing easement has been a
part of the Project since the Planning Commission Public Participation Meeting in July 2022 and
the Design Review Board guidance meeting in early August 2022, and throughout the extensive
public review process undertaken by the City for this Project.” (Exhibit 7 Recon.)
13. The Adjacent Owners’ comments in the record which pertain to the issue of this Reconsideration
Request express concerns about Ingress and Egress, alignment and proposed re-alignment of the
Adjacent Owners’ existing driveways and access to Baker Hill Road, maintenance and restoration
of the realigned driveway, and tree restoration for the decommissioned portion of the existing
driveway. (Exhibit 33, Exhibit 34, Exhibit 35, and Exhibit 36).
14. Adjacent Owners’ Reconsideration comment stated their belief that “under the easement we
have held for 40 years, we would have to agree to any alteration to our current driveway and
easement in writing.” They ask that the requirement that they concur in writing as a condition
for modification of their easement remain. (Exhibit 3 Recon.)
DECISION ON RECONSIDERATION
Bainbridge Island Interim Hearing Examiner
Baker Hill 7 Subdivision Application - 4 -
15. The COBI commented that “As issued by the Hearing Examiner, the City interprets condition 17.C
to require that the applicant include a written acknowledgement from the neighboring
interested parties that they have reviewed and approved the design/layout of the driveway the
neighboring parties currently use as grantee to an easement granted by the applicant over the
applicants’ property. The City would treat that requirement as another submittal from the
applicant, and therefore would not be a party to the collaboration required to produce that
agreement.” And that “It is presumed that nothing in the HEX condition requires the City to
approve a proposal that conflicts with established code and construction standards.”
16. The Project as designed proposes to relocate the Adjacent Owners’ existing roadway. (Exhibit 1,
16 of 19).
17. COBI-recommended Project conditions included provision for widened pavement of the road
approach to Baker Hill Road to the private driveway serving properties to the south of the site….
(Condition 18D). (Exhibit 1, 16 of 19, Exhibit 18, Exhibit 38 and Exhibit 39).
18. The Staff Report notes that Project proposes to install an 18 FT wide paved road section where
the proposed road intersects with NE Baker Hill Road that extends approximately 30 FT to the
southwest where the proposed road narrows to a 12 FT wide paved section. The 18 FT wide
road section shall be carried out an additional 80 FT, for a total of approximately 110 FT, to the
proposed location of the relocated residential access drive to the south … (Exhibit 1, 16 of 19).
19. As designed, portions of the Adjacent Owners’ driveway access would be dedicated for public
roadway use. (Exhibit 10, Exhibit 1, 16 of 19).
20. Proposed Condition 18.C. of the Staff Report states that “Access to the new lots will require an
extension of the public road network.” (Exhibit 1, 16 of 19).
21. The Applicants’ Engineer describes that “The access road will be located in a 30-foot right of way
that will be dedicated to the City. The access driveway for the properties to the south will also be
realigned to connect to the new road. The easement will be modified and a portion of the
existing driveway removed and replanted.” (Exhibit 10).
Based upon the above Findings on Reconsideration, the Hearing Examiner makes the following:
SUPPLEMENTAL CONCLUSIONS Of LAW
1. All conclusions of the Hearing Examiner’s Original Decision remain undisturbed, unless and
except as revised herein.
2. The term "easement" means "`a right, distinct from ownership, to use in some way the land of
another, without compensation.'" Crisp v. Vanlaecken, 122 P.3d 926, 928, 130 Wn. App. 320,
DECISION ON RECONSIDERATION
Bainbridge Island Interim Hearing Examiner
Baker Hill 7 Subdivision Application - 5 -
(Wash. 2005, quoting City of Olympia v. Palzer, 107 Wash.2d 225, 229, 728 P.2d 135 (1986)
(quoting Kutschinski v. Thompson, 101 N.J.Eq. 649, 656, 138 A. 569 (1927)). It forms a burden on
the land and an interest in land. Kesinger v. Logan, 113 Wash.2d 320, 326, 779 P.2d 263 (1989).
3. An "appurtenant" easement benefits property, referred to the dominant estate. Id. Additionally,
with an easement appurtenant, the burdened property is referred to as the servient estate.
M.K.K.I., Inc. v. Krueger, 135 Wn. App. 647, 655, 145 P.3d 411 (2006 (citing Roggow v. Hagerty, 27
Wn.App. 908, 911, 621 P.2d 195 (1980)). When the dominant estate is transferred to another
owner, the appurtenant easement also transfers, unless limited by the creation or transfer of the
easement. Green v. Lupo, 32 Wn.App. 318, 323, 647 P.2d 51 (1982).
4. "Unless limited by the terms of creation or transfer, appurtenant easements follow possession of
the dominant estate through successive transfers." Green v. Lupo, 32 Wash.App. 318, 323, 647
P.2d 51 (1982).
5. Here, the Applicants’ Project property is the servient estate and the Adjacent Owners’ property
which benefit from the ingress and egress easement are dominant estates. (Exhibit 18.) The
Adjacent Owners’ easement has followed possession of the dominant estate through successive
transfers, including to Applicants. (Exhibit 18.)
6. The traditional rule at common law that is that easements cannot be altered without the express
consent of both parties. 25 Am.Jur.2d 649; F.M. English, Relocation of Easements, 80 A.L.R.2d
743 § 4 (1961). The majority of courts that have addressed the issue have held that they lack the
equitable authority to order relocation of an easement, even if the change is necessary to one
estate and would not inconvenience the other. MacMeekin v. Lihi, 45 P.3d 570, 575, 111 Wash.
App. 188 (Wash. App. 2002).
7. Washington law firmly adheres to the traditional rule that easements may not be relocated
absent mutual consent of the owners of the dominant and servient estates, regardless of how
the easement was created. MacMeekin, at 575.
8. In contrast, the Restatement (Third) of Property (Servitudes) (2000) adopts the minority view.
Section 4.8(3) of Restatement (Third) provides:
Unless expressly denied by the terms of an easement, ... the owner of the servient estate is
entitled to make reasonable changes in the location or dimensions of an easement, at the
servient owner's expense, to permit normal use or development of the servient estate, but
only if the changes do not:
(a) significantly lessen the utility of the easement,
(b) increase the burdens on the owner of the easement in its use and enjoyment, or
(c) frustrate the purpose for which the easement was created.
DECISION ON RECONSIDERATION
Bainbridge Island Interim Hearing Examiner
Baker Hill 7 Subdivision Application - 6 -
… This rule is designed to permit development of the servient estate to the extent it can be
accomplished without unduly interfering with the legitimate interests of the easement
holder.
MacMeekin, 45 P.3d 577-578.
9. The MacMeekin Court, at 45 P.3d 579, expressly declined to adopt the Restatement (Third)’s
approach to easement relocation. “Although our Supreme Court has never directly addressed
the issue of court-ordered relocation of easements, and we can only be guided by its
pronouncements of dicta, the dictum contains every indication that Washington adheres to the
traditional rule that easements, however created, are property rights, and as such are not
subject to relocation absent the consent of both parties. We so hold.” The Court also declined to
rule that authority exists to order relocation of easements based on equitable principles. Id.
10. MacMeekin, which has been cited with approval 27 times since 2002, provides a detailed
analysis of its reasons for refusing to adopt the minority rule, reviewing a number of Washington
cases with similar holdings. Coast Storage Co. v. Schwartz, 55 Wash.2d 848, 854-55, 351 P.2d 520
(1960) (consent required of all interested parties to relocate express easement); State ex rel.
Northwestern Elec. Co. v. Clark County Superior Court, 28 Wash.2d 476, 488, 183 P.2d 802 (1947)
(easement right, once granted and exercised, cannot be changed "at the pleasure of the
grantee"); Northwest Cities Gas Co. v. Western Fuel Co., 13 Wash.2d 75, 88, 123 P.2d 771 (1942)
(an adverse use creates a prescriptive easement that cannot be terminated or abridged at the
will of the servient estate owner); White Bros. Crum Co. v. Watson, 64 Wash. 666, 670, 117 P.
497 (1911) (cannot change character of servitude without consent).
11. The Court in Crisp summarized the sound policy reasons which support the Court’s adherence to
the traditional rule to require mutual consent in order to relocate an easement.
[t]he traditional approach favors uniformity, stability, predictability and property rights. The
Restatement (Third) approach favors flexibility, and the development potential of the
servient estate. Under the traditional approach, the holder of the servient estate must
purchase the right to relocate the easement if he is to have it at all. Under the Restatement
(Third) approach, relocation may be forced upon the holder of the dominant estate against
his will.
***
Judicial relocation of established easements … would introduce uncertainty in real estate
transactions. The Restatement's version of the relevant rule could invite endless litigation
between property owners as to whether a servient estate owner may relocate an existing
easement without a dominant estate owner's consent.
Crisp v. Vanlaecken, 122 P.3d 926, 929, 130 Wn. App. 320 (Wash. 2005).
DECISION ON RECONSIDERATION
Bainbridge Island Interim Hearing Examiner
Baker Hill 7 Subdivision Application - 7 -
12. Applicants comment that extensive outreach was made to neighbors during the planning
process, but the crucial omission is evidence that the outreach resulted in the dominant estate
owners’ consent to any relocated access. Rather, the record shows the dominant estate owners
have not agreed.
13. Applicants raise on Reconsideration that “The portion of the private driveway proposed for
realignment is not currently located in an easement and the realignment will move it into the
easement that benefits the neighbors.” But the record shows it is undisputed that location of the
shared driveway allowed by easement has been fixed for decades. (Exhibit 2 Recon, Exhibit 3
Recon, Exhibit 18). Under these facts, the Washington Supreme Court has ruled that "[w]hen
the right granted has been once exercised in a fixed and defined course, with the full
acquiescence and consent of both parties, it cannot be changed at the pleasure of the grantee."
State ex rel Northwestern Elec. Co. v. Clark County Superior Court, 28 Wash.2d 476, 488, 183 P.2d
802, 173 A.L.R. 1351 (1947).
14. Applying the law above, a Hearing Examiner lacks authority to approve a land use proposal that
as designed, proposes to unilaterally relocate an appurtenant ingress and egress easement that
has existed for decades, unless the consent of both the servient estate owner and dominant
estate owners is obtained.
15. As persuasive illustration, in a 2014 unpublished decision, developer Grandview North LLC
appealed the City of Burlington's Planning Commission and City Council’s decision to deny
Grandview's land use application. The City denied the application, finding substantial evidence
that the designs would interfere with neighboring property owner B.B. LLC's access through a
shared easement:
A representative for B.B. LLC stated the "biggest issue for [B.B. LLC] is ingress/egress to their
property" because the design would change the configuration of getting in and out of the bike
shop. ….if a street is constructed on the north boundary to replace the current easement, it
will "wall off [its] property from the north and make the property virtually an island" leaving
only a "small and inadequate" driveway.
On review, appellate courts upheld the City’s denial, finding, the “design also affects B.B. LLC's
access and use of the easement, a property right that Grandview cannot ignore”. Grandview
North, LLC v. City of Burlington, 69639-4-I (Wash. App. Feb 18, 2014). Emphasis added.
16. The Applicants state in their Reconsideration request that “Requiring the City to obtain written
concurrence from the neighbors for this realignment overly burdens the City and the Applicant
with achieving the neighbors’ desires regardless of City code requirements.” And, that the
“clarification will ensure that the concerns of the two neighbors and the Applicant are
considered, but also protects the authority of the City to make the final determination on the
proposed driveway realignment into the existing easement to connect to the new road providing
access to Baker Hill Road”. (Applicants’ Reconsideration Request.)
DECISION ON RECONSIDERATION
Bainbridge Island Interim Hearing Examiner
Baker Hill 7 Subdivision Application - 8 -
17. In response, the COBI has authority to review and assess the proposed Project for conformity
with state law subdivision requirements and compliance with its Comprehensive Plan, planning
and zoning codes. But COBI’s authority does not extend so far as to disregard established
property rights.
18. Franklin County was confronted with a similar issue in Richardson v. Cox, 108 Wn. App. 881, 26
P.3d 970, (Wash. App. 2001). The County was persuaded to construct a sixty-foot-wide public
roadway at the behest of some but not all owners of the property adjacent to the proposed
public road. However, the facts revealed that only half of the width had been dedicated to the
County. The remaining 30 feet width was a roadway easement benefiting private parties.
Although the County obtained permission from some of the easement’s dominant estate
owners, one party Richardson did not agree. After the County constructed the roadway for
public use, Richardson sued.
On appeal, the Court ruled that because Richardson had not agreed to the public use of a
portion of their roadway easement, the Richardsons were entitled to damages from the County,
and attorneys’ fees and costs. (“absent the Richardsons' dedication of this roadway to the
County for use by the public, they are entitled to just compensation for the taking. Dean v.
Lehman, 143 Wash.2d 12, 31, 18 P.3d 523 (2001) … The Richardsons' request for attorney fees
and costs on appeal is granted…”). Richardson, at 979. In sum, the easement holder’s consent
was required for public roadway dedication.
19. The COBI acknowledges this premise, that property rights must be addressed, as shown in the
COBI’s Staff Report where COBI acknowledges that at least one other title issue must be resolved
prior to plat approval:
17. The project shall comply with the following to the satisfaction of the City Survey Program
Manager:
A. On the ROW dedication, include the language: The City of Bainbridge Island is also
granted the right to go beyond the above described right-of-way where necessary to
accommodate the slopes of cuts and fills in roadway construction and maintenance.
B. The shown encroachment along the north boundary will require resolution, such as an
agreement to resolve any potential adverse claim to the subject property. Such
agreement shall require review and approval by the City prior to final plat approval.
Exhibit 1, p 16 of 19. Emphasis added.
20. The Hearing Examiner agrees with the COBI that nothing in the HEX condition (both in the
Supplemental Decision and as modified herein) “requires the City to approve a proposal that
conflicts with established code and construction standards.” Nothing in the HEX condition (both
in the Supplemental Decision and as modified herein) requires curb cuts or alignments or any
other design that does not conform to COBI code or construction standards. Nor does this
DECISION ON RECONSIDERATION
Bainbridge Island Interim Hearing Examiner
Baker Hill 7 Subdivision Application - 9 -
Hearing Examiner have the authority or presume to prevent additional vehicles from traveling
over a non-exclusive easement.
DECISION ON RECONSIDERATION
The Applicants’ Reconsideration Request is DENIED; the Decision is CLARIFIED upon Reconsideration.
Based on the Findings and Conclusions of the Original Hearing Examiner Decision, the Supplemental
Findings and Supplemental Conclusions, and the Findings and Conclusions on Reconsideration, the
Applicants’ requests for 1) approval of a preliminary plat to subdivide two currently undeveloped lots
into seven single family residential lots, with each lot containing a single-family residence and a detached
accessory dwelling unit, and 2) two requests for Administrative Departures are APPROVED subject to the
conditions of the Original Hearing Examiner Decision except as modified herein, the modified conditions
of the Supplement Decision except as modified herein, and the following amended condition on
Reconsideration:
1. Condition of approval 17.C of the Hearing Examiner’s Original Decision provided that, “The
access driveway for the properties to the south shall be realigned to connect to the Project’s
new road to provide access to Baker Hill Road. Such access shall require review and approval by
the City prior to final plat approval.” In the Supplemental Decision, Condition 17.C was revised
to provide: “The access driveway for the properties to the south shall be realigned to connect to
the Project’s new road to provide access to Baker Hill Road. Such access shall require review and
approval by the City and the written concurrence of the owners of the two adjacent properties
to the south which are benefited by the existing driveway (currently Adjacent Owners Mr. &
Mrs. Sircoloumb and Mr. & Mrs. Keyes) prior to final plat approval.”
In this Decision on Reconsideration, Condition 17.C is further revised to provide: “The existing
access driveway for the properties to the south may be realigned to connect to the Project’s
new road to provide access to Baker Hill Road, subject to the following conditions. Such
realignment shall require review and approval by the COBI, which will exercise its authority and
obligation to require conformity with established code and construction standards. Because the
decades old access driveway was established by acknowledged grant of easement, any
realignment requires written concurrence of the owners of the two benefitting adjacent
properties to the south (currently Adjacent Owners Mr. & Mrs. Sircoloumb and Mr. & Mrs.
Keyes) prior to final plat approval.”
Decided: March 20, 2024.
Carolyn A. Lake .
Caroyn A. Lake
Bainbridge Island Interim Hearing Examiner