A tale of 2 access points

Information obtained from a public records request shows there could be some validity to Bob Scales’ claims that the Bainbridge Island City Council was ill-informed about a neighborhood dispute.

In a letter to city manager Blair King, Scales says in the previous two weeks four councilmembers came to the property and listened to concerns of neighbors.

“During these conversations it became clear that City Councilmembers were both uninformed and misinformed by city staff about the issues surrounding the parcel and our lane. It is now clear that on July 13th the City Council did not know much about the property they were voting to buy or the impacts their decision would have on the neighborhood,” the letter states.

The City Council voted July 13 to buy from Kitsap County what essentially is a road that has been maintained for decades by neighbors. Scales had already shown interest in buying the road. But Scales and the other neighbors didn’t want new property owner Tyler Hannon to use the road. They wanted him to use access to Ellingsen Road instead. But Hannon said that would have cost too much. The council deemed that unfair so they stepped in to buy it, providing Hannon access.

However, neighbors say the road cannot handle more usage. And the council didn’t know all the facts in that more trees would be cut down going that route than the other, along with other issues, like the road doesn’t even extend now to Hannon’s property and a culvert is involved.

Voice mails and emails from the records request show Public Works director Chris Wierzbicki and his staff have been working with Hannon to provide him with access to the privately maintained lane.

Internal city emails reveal concerns staff has about the purchase and future maintenance of the road.

Paul Nyland, city engineering manager, says in an email that Hannon was not included in an application to purchase the property. And in checking out the road he said, “There are some challenges here.”

Another staff email says the city could force the neighbors to maintain the road even after the city purchased it. It also suggests road standard code could prevent the county from selling the property to Scales.

In other emails, Wierzbicki says Hannon could potentially be asked to replace a culvert. As to the existing road not meeting fire code he says the city could make it as close to standards as possible “without removing large trees, paving, significant widening.”

Yet another email discusses how the city could not make Hannon pay for upgrades to the road. He would only be required to pay his proportional share, along with the other neighbors.

City support

The city supports Hannon “in his desire to access from North Madison and not from the Northwest corner via Ellingsen Road,” Nyland’s email says. “He had reasonable expectation to do that (his family owned this lot for 40 years and always intended to use that access, according to his telling).”

In the email Scales sent to King, which was copied to the Bainbridge Island Review, Scales says, “It is important to note that city staff have spent many hours assisting Mr. Hannon with his plans to develop his property, and the City Council intends to spend $23,000 of taxpayer money in order to guarantee Mr. Hannon’s access to our lane.

“Everything the city has done for Mr. Hannon has been an unconstitutional gift of public funds,” Scales’ email alleges.

His email goes on to say that Hannon could change his plans and decide to use Ellingsen Road for access, or he could decide not to build anything and sell his property. “If that happened all of the city’s time and money would have been wasted.”

Scales said the state auditor should look into this. “Why did the city donate hours of staff time and thousands of taxpayer dollars to one property owner who had not even applied for a permit?” he asks.

Scales then tells King what he plans to do if the city continues its quest to buy the land.

He already has filed an objection with the county treasurer, and may seek a temporary restraining order or preliminary injunction to prevent the sale based on it being a violation of state law, no public interest and unconstitutional gift of public funds, and violation of his due process rights regarding his pending paid application for the same land.

He also says if the city buys the road and makes it public he will refuse to maintain the street, which property owners have done for decades. He said he pays property, business and vehicle taxes, and some of those funds are designated for maintenance of public right of way. He would also expect the city to bring the road up to code. “If the city refuses to bring the road up to fire code and make it safe, then the city will be held liable for any accidents or injuries that occur due to the city’s neglect or negligence,” his email to King says.

He adds that to make it a public road condemnation proceedings would need to take place, with fair compensation going to property owners who paid the $100,000 cost to build and maintain the road for 50 years.

The email to King concludes saying the neighbors have raised other issues, including the loss of trees and negative environmental impacts. He asks King and city staff to come out and talk to them. “If you are willing to engage with us then we should be able to reach an amicable solution that is in the best interests of the neighborhood, the community and the city.”

Council visit

Michael Pollock was one of the four councilmembers who went to the site. He predicted the council will stick with the plan to buy the access land, but make sure the neighbors get what they want, too.

“With a little bit of cooperation we’d all have a win here,” he said.

Pollock said the main concerns of neighbors are the old culvert and cutting down cedar trees. After walking the property, he said an access road to Hannon’s site could be built without removing those trees. The Bainbridge Land Trust would need to grant an easement to move the potential road over about 5 feet.

“It’s up the land trust,” Pollock said. I’m sure they’d “protect trees over ferns.”

He said Hannon would allow a footpath on his property providing connectivity to Ellingsen, which would help accomplish various city goals.

Pollock said that access is closer to the building site. Constructing a driveway the other way would require more fill, culverts and removal of trees.

“I don’t see what the issue is,” Pollock said, adding the old culvert withstood everybody else building out there. “I’m not sure why one more house…”

Pollock said the metal culvert doesn’t appear to be in any danger of collapsing, and it’s not a significant salmon stream.

The trees also shouldn’t be an issue.

“The cedars don’t need to be cut down. There’s room. There are cedars down the road that are thriving.”

Request denied

In an email sent this week to King, Scales said the land trust has denied Hannon his request for the easement to build his driveway that would connect to the private road.

So, it is unlikely Hannon will be able to build the driveway there. Ellingsen would be his only alternative.

“I would ask you again to withdraw your offer and allow my application to purchase the county property to proceed,” he says.

Excerpts from emails

Tyler Hannon writes:

Hi Rob & Paul,

I hope this email finds you both healthy & well! Say, I wanted to share some information as we recently closed on the purchase of the land from my parents last month. I have attached the deed that was transferred and recorded, which indicates a 30’ Road Easement coming off Madison. ..

I also wanted to get your feedback on how to manage the current situation with the neighbors, specifically John Dechadenedes. Yesterday I had Nathan Cleaver out to scope the property and plan for doing a septic feasibility test next week. Naturally, a large beeping truck on the road sparked some heated conversation from John, who said we do not have the legal right of way to access our property from Madison.

I calmly told him we have a 30’ road easement per the recorded deed which is public, and told him the reasons we are pursuing access from Madison. This includes: the preferred home site is located on east end of property since the west half is lower in elevation and has wetter soils during the winter months. Additionally, creating a driveway via Ellingsen that traverses the width of the property would require 3x the amount of clearing than if we were to approach the home site from Madison. There are other reasons (including ecological/financial) to pursue access from Madison, but none more compelling than the fact that the actual easement is a 30ft road easement with an existing driveway (albeit overgrown) leading very close to our property corner. Comparatively speaking, the deeded easement for “ingress/egress” on the NW corner (via Ellingsen) is only 15’ and was originally intended as a bridal trail for home owners along Ellingsen.

At this point he discussed potential legal actions to prohibit us from moving any further stating that I have “turned over a hornets nest”. I suggested I am not trying to create enemies and that I simply want to build a single home for my family on land that has been in our family for over 40 years. Furthermore, that I would be more than happy to financially commit to repairing the unnamed road after construction, and participate in any road maintenance agreements with the community and understand this would be a requirement of the city as well.

…This is my first taste of friction as a landowner on the island, but I hope to address any concerns and conflicts peacefully, and avoid any legal disputes.

Do you have any advice on how I can deal with a situation such as this? I have an uneasy feeling John D will be rallying the neighbors in opposition of our dream to build a home on this family land…

Paul Nyland writes in two of the emails:

…Neighbors on an unnamed road off N. Madison, who use/maintain a road on non-privately owned land (its unclear if it’s COBI ROW or a Kitsap County-owned tax title strip remnant from the City formation) have formally complained about the owner of a lot adjacent to this ROW who is beginning the dev process for an SFR. He has a deeded access on the opposite corner of his lot, but for several reasons this is a better access point. Neighbors are upset, making threatening legal noises, and claim that their RMA gives them exclusive rights use of the road…

…the ROW would need to be left in the same condition or better than before the work started…there are some limits to what we’ll ask for, as we’re cognizant of proportionality (i.e. building a single house at the end of a substandard road that serves 8 other properties does not mean that the one owner is solely responsible for wholesale upgrades to the entire road at their expense)…that’s where we work on being consistent and fair across the board. I’m aware that there is a culvert in this driveway, so we’d be aware of that and condition the permit to ensure that culvert is in good working order prior to any certificate of occupancy. ..Any damage of any kind by the applicant/ assigns shall be repaired at applicant’s sole cost and expense.

After all that, I don’t know what the plan should actually be. DE supports the applicant (Hannon) in his desire to access from N. Madison and not from the NW corner via Ellingsen. He had reasonable expectation to do that (his family owned this lot for 40 years and always intended to use that access, according to his telling), and from a Low Impact Development/Site Assessment Review perspective, we’d support the homesite on the eastern end of the lot where the infiltration rates are good for the OSS and topographically allows the stormwater to be managed to the west where the lot is lower and covered with existing vegetation (at least some of it native). The access would be closer to the home site, create better opportunities and less construction impact, and less hard surface required for the long-term stormwater/environmental impact.