REQUEST FOR RECONSIDERATION
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Reply to: Seattle Office
June 2, 2017
VIA HAND DELIVERY
Wick Dufford, Hearing Examiner Pro Tempore
280 Madison Avenue North
Bainbridge Island, WA 98110
Re: Request for Reconsideration of Madrona School Conditional Use Permit –
PLN18970B CUP
Dear Mr. Examiner:
On behalf of Don and Deena Hanke, Merry McAllister, Bill Eckel, and Dana Halvorsen, this
letter requests reconsideration of Condition 36 of the Findings of Fact, Conclusions of Law,
Order and Partial Remand (May 23, 2017; herein, “Order”) on the above-referenced Madrona
School conditional use permit. This request is made pursuant to BIMC 2.16.100.C.7 (allowing
motions for reconsideration "to correct substantive errors") and Chapter II, Section 6.4(b) of the
City of Bainbridge Island Hearing Examiner Rules (allowing reconsideration of "alleged errors
of procedure or fact").
At the open record hearing on the Madrona School conditional use permit, the public presented
substantial evidence for the need for a right-turn-only requirement at the school’s exit on North
Madison Avenue NE (“Madison”). In large part, this proposed condition was intended to lessen
the school’s traffic impacts at the intersection of Madison and SR-305. According to the school’s
traffic consultant, the school is expected to cause the east- and west-bound approaches to that
intersection to fail by 2018, impacting the neighborhood greatly. The right-turn-only requirement
was also requested to lessen traffic impacts at the entrance to the Windsong Loop neighborhood
and Mr. Halvorsen’s property, which will bear the brunt of many of the school’s negative
impacts, traffic included. As proposed by the public and endorsed by the Planning Commission,
the right-turn-only requirement would have mitigated these impacts.
In response to the evidence presented on this issue, the Hearing Examiner imposed the following
condition on the Madrona School permit:
The applicant shall review experience at the exit from the site, and
if this experience so indicates, shall limit exiting to right-turn only
during pick-up and/or drop-off times.
Wick Dufford, Hearing Examiner Pro Tempore
Madrona School Conditional Use Permit
Request for Reconsideration
Page 2
Order at 11 (Condition 36). We believe this condition is in error and request that it be revised or
replaced as discussed below.
First, implicit in Condition 36 is a recognition that a right-turn-only requirement may be
necessary to mitigate the school’s traffic impacts to acceptable levels. And that, in turn, is an
implicit admission that the school has not met its burden for a conditional use permit — at least,
not without an enforceable right-turn-only condition.
Among other things, the Bainbridge Island Municipal Code provides that a conditional use
permit may only be granted if “[a]ll necessary measures have been taken to eliminate or reduce
to the greatest extent possible the impacts that the proposed use may have on the immediate
vicinity of the subject property.” BIMC 2.16.110.D.1.f. Under the plain language of this
requirement, all measures must be taken to mitigate impacts that may occur (not will occur), and
such mitigation must be provided “to the greatest extent possible.” These are strong words
designed to ensure that no potential impact goes unmitigated. Yet here, the Order simultaneously
acknowledges that traffic impacts may, in the future, be severe enough to require a right-turn-
only limitation, but declines to make that limitation an enforceable condition of the permit. That
approach cannot be squared with the plain language of the Code. Thus, we ask the Hearing
Examiner to reconsider Condition 36 and to replace it with a clear, unambiguous, and
enforceable right-turn-only condition at the school’s exit.
Second, even if it were permissible under the Code to delay mitigation of potential traffic
impacts, Condition 36 still suffers from a common-sense problem: It is not enforceable.
Under Section 2.16.110 of the Bainbridge Island Municipal Code, the purpose of a conditional
use permit is clear:
A major conditional use permit is a mechanism by which the city
may require specific conditions on development or the use of land
to ensure that designated uses or activities are compatible with
other uses in the same zone and in the vicinity of the subject
property. If imposition of conditions will not make a specific
proposal compatible the proposal shall be denied.
BIMC 2.16.110.A. Inherent in the definition above is the idea that conditions in a conditional use
permit will be mandatory and enforceable — otherwise, they cannot “ensure” compatibility with
the surrounding area. Yet, Condition 36 is completely unenforceable. It requires the school to
police itself on the basis of its own experience. But even if the school’s future traffic problems
become obvious and severe, it offers no mechanism for the city or neighborhood to force
compliance. It is also unclear that the city would have any authority to enforce a right-turn-only
requirement imposed by the school, and which is not imposed by the terms of the permit itself.
Without intending any disparagement of the school’s intentions, no developer should be trusted
to police itself — that is why we have development regulations. Nor should the school be the
sole arbiter of what future experience teaches when it will not face the brunt of future traffic
Wick Dufford, Hearing Examiner Pro Tempore
Madrona School Conditional Use Permit
Request for Reconsideration
Page 3
impacts. That is unfair, unwise, and antithetical to the strict requirements for a conditional use
permit.
Thus, if the Hearing Examiner does not replace Condition 36 with a mandatory right-turn-only
requirement (as requested above), then we ask, at a minimum, that it be replaced with a condition
allowing someone other than the school to determine whether such a condition is necessary at a
later date. In Washington, it is not unusual for conditional use permits to undergo periodic
review, the purpose of which is to ensure that the use continues to be harmonious with its
surroundings over time and that negative impacts continue to be mitigated. Applied here, we
believe such a condition could take the following form:
First, the school should be required to collect periodic traffic data along Madison and at
the intersection of Madison and SR-305 to measure the severity of its traffic impacts. In
our opinion, such data should be collected at monthly intervals to show the change in
traffic patterns and potential problems.
Second, one year after completion of each phase of the school project, a public hearing
should be held before the Hearing Examiner wherein the school must present its traffic
data and where the public can comment on the need for a right-turn-only requirement.
The data should be provided to the public one month before the hearing.
Third, following presentation of the schools’ data and public comment, the hearing
examiner — not the school — should decide whether a right-turn-only requirement will
be imposed.
This process should follow each phase of the school’s construction. It should follow any
increase in the school’s enrollment beyond that approved in the current permit. Finally, it
should follow any change in the school’s schedule for pick-up and drop-off times.
As discussed above, we believe a right-turn-only requirement should be imposed now under the
plain language of the Code. But if that issue must be deferred to the future, the process outlined
above represents a fair and reasoned way of ensuring that the school’s traffic impacts do not go
unmitigated, that the plain language of the Code is honored, and that the issue is decided by a
neutral decision maker, not the school itself.
For the reasons above, we ask that you reconsider and replace Condition 36. Thank you for your
consideration of this matter.
Very truly yours,
BRICKLIN & NEWMAN, LLP
Bryan Telegin
Wick Dufford, Hearing Examiner Pro Tempore
Madrona School Conditional Use Permit
Request for Reconsideration
Page 4
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