SEPA APPEAL_WINSLOW HOTEL_OFFICIAL RECORD 011720BEFORE THE HEARING EXAMINER
FOR THE CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of ) No. HEA-2020-01
) No. PLN50880 SPR/ PLN50880 CUP
Winslow Neighbors )
)
Of a Mitigated Determination )
Of Nonsignificance ) ORDER OF DISMISSAL
TO: David Bricklin, Attorney for Appellant
Via email to: bricklin@bnd-law.com
Nancy Rogers and Maxwell Burke, Attorneys for Applicant
Via email to: NRogers@Cairncross.com and MBurke@Cairncross.com
Jim Haney, City Attorney
Via email to: jhaney@omwlaw.com
Carla Lundgren, City of Bainbridge Island
Via email to: clundgren@bainbridgewa.gov [For Official File]
PLEASE TAKE NOTICE that Attorney David Bricklin, on behalf of the Appellant, filed a
withdrawal of the appeal on January 17, 2020.
The Hearing Examiner’s Rules of Procedure for appeal hearings (Chapter 2) provide:
2.5.1 Only an Appellant may withdraw an appeal.
2.5.2 Where an appeal is made by several persons, a group, organization,
corporation, or other entity, withdrawal shall be made by the person
designated as the party representative.
2.5.3 An Appellant’s request to withdraw shall be granted as a matter of right
and the appeal dismissed.
Given the notice and Rules of Procedure the appeal is dismissed. The hearing on the Winslow
Hotel CUP/SPR applications will be held at 10:00 AM, as scheduled on January 23, 2020.
SO ORDERED this 17th day of January 2020.
THEODORE PAUL HUNTER
Hearing Examiner
Sound Law Center
From:Dave Bricklin
To:Carla Lundgren
Cc:Nancy Rogers; Maxwell Burke; James E. Haney; ekelly@omwlaw.com; Amelia Westling
Subject:RE: In the matter of the Appeal of: Winslow Neighbors (HEA-2020-01/ PLN50880 SPR/ PLN50880 CUP)
Date:Friday, January 17, 2020 12:09:26 PM
Ms. Lundgren,
Please forward this communication to the Examiner:
The hearing examiner is required to confirm the Planning Commission’s recommendation to deny
the proposal, unless one of the four conditions in BIMC 2.16.040.E.6.b and BIMC 2.16.110.E.5.b are
present. Winslow Neighbors believes the applicant will not be able to sustain its burden of proving
that any of those conditions are present. In those circumstances, a remand to correct errors in the
SEPA process would be a waste of time for all concerned. Consequently, Winslow Neighbors is
withdrawing its appeal of the MDNS.
This should benefit everyone by increasing the likelihood that there will be sufficient time for all of
the testimony (city, applicant, public) that is anticipated next Thursday. Regarding that, the Pre-
Hearing Order understandably did not address the agenda for the open record hearing on the
permits. So that those planning to testify can prepare, it would be useful to know the order the
Examiner will establish for that testimony and whether any time limits will be imposed.
Please let me know if you have any questions or if it is necessary to file a notice of withdrawal in
pleading format. Thank you.
David Bricklin
Bricklin & Newman, LLP
1424 Fourth Avenue, Suite 500
Seattle, WA 98101
1-206-264-8600
1-206-264-9300 (fax)
bricklin@bnd-law.com
http://www.bnd-law.com
Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!
From: Amelia Westling <AWestling@Cairncross.com>
Sent: Friday, January 17, 2020 12:45 PM
To: clundgren@bainbridgewa.gov; James E. Haney <jhaney@omwlaw.com>; ekelly@omwlaw.com;
Dave Bricklin <bricklin@bnd-law.com>; Peggy Cahill <cahill@bnd-law.com>; Bricklin & Newman, LLP
<miller@bnd-law.com>
Cc: Nancy Rogers <NRogers@Cairncross.com>; Maxwell Burke <MBurke@Cairncross.com>
Subject: In the matter of the Appeal of: Winslow Neighbors (HEA-2020-01/ PLN50880 SPR/
PLN50880 CUP)
Dear Mr. Examiner and Parties,
Please find attached a copy of the following documents for the above referenced matter:
1. Pre-Hearing Response Brief of Applicant Madison Avenue Development, Inc. In Support of
MDNS
2. Applicant’s Witness and Exhibit List for SEPA Appeal
Note that today, January 17, 2020, two copies are being hand delivered to Carla Lundgren. Please let
me know if you are unable to open the attachment.
Thank you,
CH& | Amelia Westling
Legal Assistant
Cairncross & Hempelmann
524 Second Avenue | Suite 500 | Seattle, WA 98104-2323
d: 206-254-4427 | f: 206-587-2308
AWestling@Cairncross.com | www.cairncross.com
CH& is a member of Mackrell International, a Global Network of Independent Law Firms.
This email message may contain confidential and privileged information. If you are not the intended recipient, please contact
the sender by reply email and delete the original message without reading, disclosing, or copying its contents.
BEFORE THE HEARING EXAMINER
FOR THE CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of ) No. HEA-2020-01
) No. PLN50880 SPR/ PLN50880 CUP
Winslow Neighbors )
)
Of a Mitigated Determination ) RESPONSE TO APPELLANTS’
Of Nonsignificance ) REQUEST FOR CONTINUANCE
TO: Robin Simons, Appellant Representative on behalf of Winslow Neighbors
Via email to: robin.a.simons@gmail.com
Bruce Anderson, Applicant Representative
Via email to: brucea@cutler-anderson.com
Jim Haney, Attorney for the City
Via email to: jhaney@omwlaw.com
Carla Lundgren, Clerk to the Hearing Examiner
Via email to: clundgren@bainbridgewa.gov
For Official File
PLEASE TAKE NOTICE that on December 19, 2019, Appellant Robin Simons submitted an
email request and follow-up email on December, 20, 2019, to the Hearing Examiner that the
previously scheduled appeal hearing dat e of January 23, 2020, be postponed until sometime in
the middle of February. Both the Applicant and City responded to the Appellant’s request in
emails dated December 20, 2019. Both the App licant and the City oppose a change in the
hearing date. The Hearing Examiner is also aware that the date for the open record appeal
hearing is scheduled on the same day as the date for the open record application hearing; as the
appeal must by law be consolidated with a hearing on the underlying permit application.
Having considered the request, and the responses to it from the City and Applicant, the Hearing
Examiner hereby denies the request for a continuance.1
ISSUED this day 20th day of December 2019.
THEODORE PAUL HUNTER
Hearing Examiner
Sound Law Center
1 If the Appellant is able to determine an alternate hearing date for the appeal and underlying application
that is acceptable to the City and Applicant, the Hearing Examiner will accommodate that date, within
reason.
From:Robin Simons
To:david@soundlawcenter.com
Cc:brucea@cutler-anderson.com; jhaney@omwlaw.com; Carla Lundgren
Subject:request for postponement of Hearing on Winslow Hotel
Date:Thursday, December 19, 2019 3:53:37 PM
In response to the Pre-Hearing Order attached, I request that the Hearing be postponed for
approximately one month for several reasons:
1. The time for reviewing and preparing documents is extremely short. I believe all parties
would be better served by having more time to prepare.
2. The holidays make this short time frame even more burdensome since many people
involved will be unavailable.
3. At least one of the Appellant's expert witnesses will be out of town on January 23, returning
late on January 25.
4. I, the Appellant, will be unavailable the entire week preceding the Hearing (from Jan 12-18)
and unable to do the preparation required during that time.
5. The Planning Director has yet to issue a Planning Director's report on the project, which we
will need time to review and respond to.
For these reasons I believe a postponement until the middle of February is reasonable and
warranted, and would, in fact, benefit all parties.
Thank you.
Robin Simons
On Mon, Dec 16, 2019 at 4:45 PM <david@soundlawcenter.com> wrote:
Please note attached PHO corrected globally for City of Bainbridge
Island contact. We regret the error. Please disregard first two PHOs.
Thank you.
>
> On 2019-12-16 15:30, david@soundlawcenter.com wrote:
>> TO: Robin Simons, on behalf of Winslow Neighbors, Appellant
>> Representative
>> Via email to: robin.a.simons@gmail.com
>>
>> Bruce Anderson, Applicant Representative
>> Via email to: brucea@cutler-anderson.com
>>
>> Jim Haney, City Attorney
>> Via email to: jhaney@omwlaw.com
>>
>> Carla Lundgren, City of Bainbridge Island
>> Via email to: clundgren@bainbridgewa.gov
>> For Official File
>>
>> RE: Procedural Matters
>>
>>
>> Attached is the Hearing Examiner's Pre-Hearing Order on the Winslow
>> Neighbors appeal of a MDNS. Please provide an email reply that you
>> have received this attachment. Thank you.
>>
>> David E. Ortman
>> Attorney-at-Law
>> Sound Law Center
>> 4500 Ninth Avenue NE, Suite 300
>> Seattle, WA 98105
>> (206) 233-1908
Pre-Hearing Order
City of Bainbridge Island Hearing Examiner
Callahan, et al., Appeal of a MDNS and Administration Decision
No. HEA-2018-03; No. PLN51027 VEG
Page 1 of 3
BEFORE THE HEARING EXAMINER
FOR THE CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of ) No. HEA-2020-01
) No. PLN50880 SPR/ PLN50880 CUP
Winslow Neighbors )
)
Of a Mitigated Determination )
Of Nonsignificance ) PRE-HEARING ORDER
TO: Robin Simons, on behalf of Winslow Neighbors, Appellant Representative
Via email to: robin.a.simons@gmail.com
Bruce Anderson, Applicant Representative
Via email to: brucea@cutler-anderson.com
Jim Haney, City Attorney
Via email to: jhaney@omwlaw.com
Carla Lundgren, City of Bainbridge Island
Via email to: clundgren@bainbridgewa.gov
For Official File
PLEASE TAKE NOTICE that on December 9, 2019, Robin Simons and Phyllis Carlyle, on
behalf of Winslow Neighbors, appealed the City’s November 25, 2019, Mitigated Determination
of Nonsignificance (MDNS) for a Site Plan and Design Review, and a Conditional Use Permit to
redevelop property for an 87-room hotel at 241 and 253 Winslow Way W.1
The open record appeal hearing on the MDNS will be held on:
January 23, 2020, 10:00 AM
Council Chambers, Bainbridge Island City Hall
1 The City of Bainbridge Island Hearing Examiner Chapter 2: Rules of Appeal of Administrative Decisions,
Sec. 2.6.1, provides:
When a party consists of more than one individual, or is a group, organization, corporation, or
other entity, the party shall designate an individual to be its representative and inform the Hearing
Examiner of the name, address, and telephone number of that designated representative. The
rights of the appellant shall be exercised by the person designated as the party representative.
Notice or other communication to the party representative is considered to be notice or
communication to the party.
Unless notified otherwise, Ms. Simons will serve as the party representative. Appeal at 5.
Pre-Hearing Order
City of Bainbridge Island Hearing Examiner
Callahan, et al., Appeal of a MDNS and Administration Decision
No. HEA-2018-03; No. PLN51027 VEG
Page 2 of 3
280 Madison Ave N.
Bainbridge Island, Washington
Appeal Procedures
The following order is intended to facilitate hearing and resolution of this matter:
1. Motions: By Noon, January 6, 2020, two paper copies of any motions may be submitted
to Carla Lundgren at the City of Bainbridge Island (who will forward one copy to the
Hearing Examiner), with a copy to the other parties. By Noon, January 10, 2020, two
paper copies of any response to motions may be submitted by any party to Ms. Lundgren
(who will forward one copy to the Hearing Examiner), with a copy to the other parties.
2. Briefs: By Noon, January 10, 2020, two paper copies of a brief, not to exceed 15 double-
spaced pages, may be submit ted by any party to Ms. Lundgren (who will forward one
copy to the Hearing Examiner), with a copy to the other part ies. By Noon, January 17,
2020, two paper copies of a response brief, not to exceed 10 double-spaced pages, may be
submitted by any party to Ms. Lundgren (who will forward one copy to the Hearing
Examiner), with a copy to the other part ies.
3. Witness and Document Lists: By Noon, January 17, 2020, the parties shall provide to
the other part ies, with two paper copies to Ms. Lundgren (who will forward one copy to
the Hearing Examiner), the following:
a. a witness list, if any
b. a documents list
c. copies of the documents
The witness list shall include the name, address and telephone number of each witness ,
and a summary of the appeal issue to be addressed. If the witness will be providing
expert testimony, the witness list shall also identify the witness’s area of expertise. Only
those witnesses and documents identified shall be allowed at the hearing. The witness
list shall identify the issue(s) on which each witness will testify. Objections to admission
may be made at the hearing; if no objection is made the document will be deemed
admitted. All parties to the appeal shall have an opportunity to cross-examine witnesses.
Copies of each document shall be tabbed and designated as follows: Appellants (A-1,
A-2, etc.), Applicant (B-1, B-2, etc.), and City (C-1, C-2, etc.).
4. Issues on Appeal: The issues on appeal shall be limited to those identified in the appeal
statement.
5. Applicable law requires the appeal of a threshold determination be consolidated with the
hearing of the underlying permit. Therefore, the appeal hearing will take place in two
parts: first the Appellant’s MDNS appeal, followed by on open record hearing on the
Site Plan/Design Review and CUP application. If the MDNS appeal is granted, no
Pre-Hearing Order
City of Bainbridge Island Hearing Examiner
Callahan, et al., Appeal of a MDNS and Administration Decision
No. HEA-2018-03; No. PLN51027 VEG
Page 3 of 3
decision on the Site Plan/Design Review or CUP applications will be made until
environmental review is completed. If the MDNS appeal is denied, the Site Plan/Design
Review and CUP applications will be decided.
6. The general format of the appeal hearing shall be as follows:
SEPA MDNS appeal
a. Introductory remarks by the Hearing Examiner ;
b. Presentation of Appellant witnesses and cross-examination of those witnesses
by the Applicant and City;
c. Presentation of City witnesses and cross-examination of those witnesses by
the Applicant and Appellant;
d. Presentation of Applicant witnesses and cross-examination of those witnesses
by the City and Appellant ;
e. Closing arguments, if any.
7. The parties are encouraged to discuss settlement and to notify the Clerk to the Hearing
Examiner of any settlement reached prior to the scheduled hearing.
The SEPA MDNS appeal will be followed by an open record hearing on the Site Plan and
Design Review and Conditional Use Permit applications.
ISSUED this day 16th day of December 2019.
THEODORE PAUL HUNTER
Hearing Examiner
Sound Law Center
NOTICE OF APPEARANCE - 1
Bricklin & Newman, LLP
Attorneys at Law
1424 Fourth Avenue, Suite 500
Seattle WA 98101
Tel. (206) 264-8600
Fax. (206) 264-9300
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BEFORE THE HEARING EXAMINER
FOR THE CITY OF BAINBRIDGE ISLAND
IN THE MATTER OF THE APPEAL OF
WINSLOW NEIGHBORS
Of a Mitigated Determination of
Significance
NO. HEA 2020-01
NO. PLN50880 SPR/PLN50880 CUP
NOTICE OF APPEARANCE
PLEASE TAKE NOTICE that Winslow Neighbors hereby appears in the above-entitled
cause by the undersigned attorney and requests that all further papers and pleadings herein, except
original process, be served upon the undersigned attorney at the address below stated.
We also take this opportunity to advise the Hearing Examiner and parties that we consent
to have documents served upon us by e-mail, so long as the other parties consent to such service.
Dated this 10th day of January, 2020.
Respectfully submitted,
BRICKLIN & NEWMAN, LLP
By: ____________________________________
David A. Bricklin, WSBA No. 7583
Attorney for Winslow Neighbors
WINSLOW NEIGHBORS’ PREHEARING BRIEF ON SEPA ISSUES - 1
Bricklin & Newman, LLP
Attorneys at Law
1424 Fourth Avenue, Suite 500
Seattle WA 98101
Tel. (206) 264-8600
Fax. (206) 264-9300
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BEFORE THE HEARING EXAMINER
FOR THE CITY OF BAINBRIDGE ISLAND
IN THE MATTER OF THE APPEAL OF
WINSLOW NEIGHBORS
Of a Mitigated Determination of Non-
Significance
NO. HEA 2020-01
NO. PLN50880 SPR/PLN50880 CUP
WINSLOW NEIGHBORS’
PREHEARING BRIEF ON SEPA
ISSUES
The policy of the act [SEPA], which is simply to ensure via a
“detailed statement” the full disclosure of environmental
information so that environmental matters can be given proper
consideration during decision making, is thwarted whenever an
incorrect “threshold determination” is made.1
I. INTRODUCTION
The Hearing Examiner has authorized the filing of prehearing briefs with regard to the SEPA
issues. This brief is not intended to be comprehensive. Winslow Neighbors will present its case in
chief at the hearing on January 23, 2020.
II. SEPA APPEAL
A. Burden of Proof
Winslow Neighbors has the burden of proof in its challenge to the MDNS. A threshold
determination by the responsible official is entitled to substantial weight and the burden is on the
appellant to establish that the determination is in error.
However, that burden does not mean that the Examiner need not scrutinize the City’s
threshold determination closely. To the contrary, because making an erroneous determination that
an EIS is not needed is highly consequential, negative threshold determinations require careful
1 Norway Hills Preservation and Protection Association v. King County Council, 87 Wn.2d 267, 273 (1976.
WINSLOW NEIGHBORS’ PREHEARING BRIEF ON SEPA ISSUES - 2
Bricklin & Newman, LLP
Attorneys at Law
1424 Fourth Avenue, Suite 500
Seattle WA 98101
Tel. (206) 264-8600
Fax. (206) 264-9300
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review. SEPA’s purpose is to ensure that agency decisions are informed by good environmental
information. An erroneous decision not to prepare an EIS strikes at the heart of SEPA’s intent to
assure that agency decisions are made “by deliberation, not default.” Stempel v. Board of Water
Resources, 82 Wn.2d 109, 118, 508 P.2d 166 (1973).
[T]he initial determination by the ‘responsible official,’ as to whether
the action is a ‘major action significantly affecting the quality of the
environment’ is very important. The policy of the act, which is
simply to ensure via a ‘detailed statement’ the full disclosure of
environmental information so that environmental matters can
be given proper consideration during decision making, is
thwarted whenever an incorrect ‘threshold determination’ is
made. The determination that an action is not a ‘major action
significantly affecting the quality of the environment’ means that the
detailed impact statement of SEPA is not required before the action
is taken or the decision is made. Consequently, ‘(w)ithout a judicial
check, the temptation would be to short-circuit the process by setting
statement thresholds as high as possible within the vague bounds of
the arbitrary or capricious standard.’
Norway Hill Pres. & Prot. Ass'n v. King Cty. Council, 87 Wn.2d 267, 273 (1976) (internal citations
omitted; emphasis supplied).
Here, the City issued a Mitigated Determination of Non-Significance (MDNS) without
adequately addressing the probable adverse environmental impacts. The absence of an adequate
analysis makes the MDNS fatally flawed. In this case, the testimony will demonstrate that there
are, in fact, significant adverse environmental impacts and an Environmental Impact Statement is
required. Alternatively, the SEPA Responsible Official did not have enough information to make
a determination and the DNS should be vacated and remanded to the City for further information
gathering and analysis.
WINSLOW NEIGHBORS’ PREHEARING BRIEF ON SEPA ISSUES - 3
Bricklin & Newman, LLP
Attorneys at Law
1424 Fourth Avenue, Suite 500
Seattle WA 98101
Tel. (206) 264-8600
Fax. (206) 264-9300
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B. As Mitigated, the Project Still Will Have Significant Adverse Impacts Requiring
Preparation of an EIS
The evidence will demonstrate that the project’s impacts are significant and, thus, an EIS
should be required. There are at least two pathways to reaching this conclusion.
One mode of analysis, addressed in this subsection, focuses on the inadequacy of the
mitigation. The City’s issuance of the Mitigated Determination of Non-Significance is an
acknowledgement that the project, without the mitigation imposed by the City, would have significant
adverse environmental impacts. The City imposed a number of conditions to mitigate traffic, parking,
noise and other impacts. One issue, then, is whether the conditions imposed in the MDNS are
sufficient to reduce the admittedly significant impacts acknowledged by the City to a level of non-
significance. The evidence will demonstrate that the mitigation conditions are inadequate to reduce
the impacts to a level of non-significance.
This may be most evident with regard to noise. The noise impacts associated with the project
will be significant. The project is proposed adjacent to residential development. The proposal includes
an outdoor venue for weddings and other events and festivities. Large commercial vehicles will be
delivering supplies at any hour of the day or night. Understandably, staff concluded that this proposal
in this location would have significant noise impacts. But staff erred in concluding that the MDNS
mitigation measures would reduce those impacts to a non-significant level.
None of the mitigation measures provide a meaningful reduction in the noise impacts.
Condition 14 requires advanced notice of events, but giving notice of the impact does nothing to reduce
it (unless the city expects the nearby residents to leave their homes whenever they receive these
notices). Condition 15 would limit the hours for garbage pickup, but that does not eliminate that noise
nor does it address all of the other noise generated by commercial vehicles or use of the outdoor venue.
WINSLOW NEIGHBORS’ PREHEARING BRIEF ON SEPA ISSUES - 4
Bricklin & Newman, LLP
Attorneys at Law
1424 Fourth Avenue, Suite 500
Seattle WA 98101
Tel. (206) 264-8600
Fax. (206) 264-9300
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Condition 16 requires that solid waste facilities be enclosed within the building, but that does
nothing to address impacts from other commercial vehicles or the outdoor venue either. Condition 17
requires installation of a six-foot high fence or wall along the west property line, but that will have
virtually no impact in terms of protecting homes to the west which will still be in the “line of sight”
(and sound) of most noise generating sources on the property, including the outdoor venue. It also will
have zero impact in terms of protecting other properties (to the south, north and east). Condition 20
requires an unspecified amount of vegetation along a portion of the southern property line. This
condition is too vague to provide mitigation for neighbors to the south. A thick forest would need to
be planted to provide a significant amount of noise reduction. Nor does it provide relief to neighbors
in any other direction.
A similar analysis regarding mitigation imposed for other impacts will lead to the same
conclusion: Given that the City has acknowledged that the project will have significant impacts
without the mitigation conditions and given that the mitigation conditions are so ineffectual, the
Examiner should determine that the significant impacts have not been adequately mitigated and that
an EIS is required.
C. The Project’s Significant Adverse Impacts Require Preparation of an EIS
The second mode of analysis focuses on the impacts themselves. In determining whether a
project’s impacts are significant, location and context matter. “The same proposal may have a
significant adverse impact in one location but not in another location.” WAC 197-11-330(3)(a).
“Significance involves context and intensity (WAC 197-11-330) and does not lend itself to a formula
or quantifiable test. The context may vary with the physical setting. . . .” WAC 197-11-794(2)
(emphasis supplied).
WINSLOW NEIGHBORS’ PREHEARING BRIEF ON SEPA ISSUES - 5
Bricklin & Newman, LLP
Attorneys at Law
1424 Fourth Avenue, Suite 500
Seattle WA 98101
Tel. (206) 264-8600
Fax. (206) 264-9300
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In some locations, downtown Seattle for instance, an 87-room hotel with banquet space,
meeting rooms, restaurant, bar, spa, and outdoor event space would not likely generate significant
adverse impacts. But the site proposed for this hotel is not downtown Seattle. It is at the far end of
the small Winslow Way commercial district. It is surrounded by a residential neighborhood and four
senior living buildings, housing nearly 200 seniors. It is on the opposite end of the Winslow business
district from the ferry terminal, which provides the sole practical source of access to the hotel.
Traffic surges associated with ferry arrivals already plague the main street (Winslow Way).
Traffic is further stalled by high levels of pedestrians crossing the streets along pedestrian-friendly
Winslow Way. The hotel developers are angling to market the hotel as a wedding venue for off-island
residents. The large influx of wedding guests arriving simultaneously after a ferry’s arrival will
overwhelm Winslow Way and the ability of the hotel to simultaneously receive so many guests.
Traffic impacts at the three intersections between the ferry and the hotel and at the driveway entrance
to the hotel have not been adequately addressed. But even the applicant’s incomplete analysis
indicates that significant adverse impacts are probable.
Likewise, adequate parking has not been provided which will result in further significant
impacts given the extremely limited availability of off-site parking.
The Planning Commission recommended denial of this project, among other reasons, because
of its aesthetic and land use impacts. The western edge of the tiny downtown provides a poor fit for
this project. These land use and aesthetic impacts are highly significant in the context of this setting.
In sum, the evidence will demonstrate that the foregoing impacts and others, whether viewed
in isolation or cumulatively,2 are significant and require preparation of an EIS.
2 “Several marginal impacts when considered together may result in a significant adverse impact.”
WAC 197-11-330(3)(c).
WINSLOW NEIGHBORS’ PREHEARING BRIEF ON SEPA ISSUES - 6
Bricklin & Newman, LLP
Attorneys at Law
1424 Fourth Avenue, Suite 500
Seattle WA 98101
Tel. (206) 264-8600
Fax. (206) 264-9300
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D. The MDNS Was Based on Inadequate Information
“The lead agency shall make its threshold determination based upon information reasonably
sufficient to evaluate the environmental impact of a proposal . . ..” WAC 197-11-335. Threshold
determinations based on inadequate information should be reversed.
For the MDNS to survive judicial review, the City must demonstrate
that it actually considered relevant environmental factors before
reaching that decision. Moreover, the record must demonstrate that the
City adequately considered the environmental factors in a manner
sufficient to be prima facie compliance with the procedural dictates of
SEPA. Further, the decision to issue a MDNS must be based on
information sufficient to evaluate the proposal’s environmental
impacts.
Boehm v. City of Vancouver, 111 Wn. App. 711, 718 (2002) (emphasis supplied). See also, Spokane
Cty. v. Eastern Washington Growth Mgmt. Hearings Board, 176 Wn. App. 555 (2013).
At the hearing, we will demonstrate that the City failed to obtain or consider highly significant
information regarding several critical issues. For instance, the traffic analysis lacked information
regarding background traffic levels relevant to seasons of the year; omitted pedestrian volumes and
their effects on traffic operations from the analysis; and had inadequate information regarding the
impact of surges from the ferry on local traffic conditions.
There also was inadequate information about hotel staffing and the number of hotel occupants
and the impact this would have on the parking analysis.
The City also lacked adequate information to assess noise impacts. There was no noise study
done.
Without adequate information to inform the threshold determination, one alternative for the
Examiner is to vacate the MDNS and remand for further analysis by staff. But because the incomplete
WINSLOW NEIGHBORS’ PREHEARING BRIEF ON SEPA ISSUES - 7
Bricklin & Newman, LLP
Attorneys at Law
1424 Fourth Avenue, Suite 500
Seattle WA 98101
Tel. (206) 264-8600
Fax. (206) 264-9300
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evidence is sufficient to demonstrate that significant impacts are probable, our primary request is for
an order requiring preparation of an EIS.
III. CONCLUSION
We expect the evidence submitted with regard to the various issues raised in our Notice of
Appeal will persuade the Examiner that the City erred in issuing an MDNS. At the conclusion of the
hearing, we will request the Examiner to vacate the MDNS and order preparation of an EIS.
Dated this 10th day of January, 2020.
Respectfully submitted,
BRICKLIN & NEWMAN, LLP
By: _____________________________________
David A. Bricklin, WSBA No. 7583
Attorney for Winslow Neighbors
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