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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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 EXHIBIT C-1 EXHIBIT C-2 EXHIBIT C-3 EXHIBIT C-4 EXHIBIT C-5 EXHIBIT C-6 EXHIBIT C-7 EXHIBIT C-8 EXHIBIT C-9 EXHIBIT C-10 EXHIBIT C-11 EXHIBIT C-12 EXHIBIT C-13 EXHIBIT C-14 EXHIBIT C-15 EXHIBIT C-16 EXHIBIT C-17 EXHIBIT C-18 EXHIBIT C-19 EXHIBIT C-20 EXHIBIT C-21 EXHIBIT C-22 EXHIBIT C-23 EXHIBIT C-24 EXHIBIT C-25 EXHIBIT C-26 EXHIBIT C-27 EXHIBIT C-28 EXHIBIT C-29 EXHIBIT C-30 EXHIBIT C-31 EXHIBIT C-32