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Court decides Hearing Examiner needs to redo 2018 Missing Link decision

Text of the court decision.
Read the full decision (PDF).

Many Seattleites have only ever known life with the Ballard Missing Link of the Burke-Gilman Trail held up in court. Children born when the City Council first approved the route are now getting ready to vote in their first election. Seattle has nearly wasted an entire generation arguing over about 1.2 miles of trail, and the Washington Court of Appeals just decided to extend the fighting even longer.

The court ruled this week that the Seattle Hearing Examiner needs to redo a 2018 decision that determined the city’s massive environmental study of this short trail segment was sufficient. That study rivals freeway megaprojects in scale and depth. It’s an absurd document that took years to create and goes over the entire trail proposal with a toothbrush.

But the Appeals Court’s decision has nothing to do with the study’s findings or the trail design or even the businesses along the planned route. In fact, it seems to have little or nothing to do with SDOT or the trail at all. Instead, the court levied a rather harsh rebuke of Ryan Vancil, now the Seattle Hearing Examiner. In 2017–18, Vancil was hearing the appeal against the Missing Link’s environmental impact statement as Deputy Hearing Examiner. At the same time, he had applied to replace the city’s retiring Hearing Examiner and was going through the interview process, a fact he did not disclose during the proceedings. Because the City Council appoints the Hearing Examiner and the Missing Link was a Council-approved project, “Vancil violated the appearance of fairness doctrine,” the Appeals Court wrote in its decision reversing King County Superior Court’s decision.

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“Because the deputy hearing examiner failed to disclose that he was seeking appointment by the Seattle City Council to replace the retiring city hearing examiner while he was also considering the adequacy of a councilendorsed project, we reverse the trial court’s summary judgment in favor of the city, enter summary judgment for the coalition, and remand for a new hearing.”

UPDATE: The Hearing Examiner declined to comment, saying, “It would be inappropriate for the Hearing Examiner to comment on a legal ruling concerning a matter on remand to the Office of Hearing Examiner.”

SDOT said in a statement that “the decision was solely concerned with the procedures followed by the Hearing Examiner, which were outside of the Seattle Department of Transportation’s (SDOT’s) control or knowledge. The decision did not include any negative findings about SDOT’s plans or Final Environmental Impact Statement.”

But the result is largely the same, at least in the near-term. The project now needs to go back to the Hearing Examiner, and that means more delays. And to the Ballard Coalition, that’s a win.

“This is another significant setback because the City, for a fourth time, has to completely re-do SEPA for the Missing Link, further wasting tax payer dollars,” Ballard Coalition attorney Josh Brower said in a press release celebrating the decision.

So for reasons that have nothing to do with the trail design or safety or bike advocacy or even the Seattle Department of Transportation, the Missing Link is delayed again. Brower has once again proven effective at finding technicalities and legal maneuvers to delay work on this trail. After losing a case, accusing the court of impartiality is a shoot the moon strategy with a low chance of success. But Brower pulled it off, unfortunately.

The decision is also problematic for future Deputy Hearing Examiners. Because the office essentially only hears cases involving city projects, how can Deputy Hearing Examiners seek career advancement within the office without appearing impartial in the same way? Would a disclosure be enough or would they need to recuse themselves?

There is one hopeful note. Seattle passed an ordinance in 2019 designed to limit appeals to projects like the Missing Link. The idea was to prevent future endless legal battles like this one, so I guess we’re about to put that ordinance to the test.

Meanwhile, people continue to crash and get injured while biking through the Missing Link. And that will continue to happen until it is fixed.

Statement from SDOT:

On March 29, 2021, the Washington State Division 1 Court of Appeals issued a decision on the Burke-Gilman Trail Missing Link Final Environmental Impact Statement (FEIS). The decision was solely concerned with the procedures followed by the Hearing Examiner, which were outside of the Seattle Department of Transportation’s (SDOT’s) control or knowledge. The decision did not include any negative findings about SDOT’s plans or Final Environmental Impact Statement. Nonetheless, this means that SDOT cannot proceed with construction of the Burke-Gilman Missing Link Trail until additional procedural steps are taken.

We are disappointed with the recent ruling, but we remain committed to completing this critical safety improvement project along our selected route. We are looking at all options available to move forward expediently to protect our most vulnerable street users.

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17 responses to “Court decides Hearing Examiner needs to redo 2018 Missing Link decision”

  1. Ballard Biker

    You keep saying people “continue to crash and get injured,” but never present any evidence of that fact, particularly any near term information since SDOT made changes to the only section where people actually were getting hurt, the part under the Ballard Bridge. No one is getting hurt on Shilshole.

    1. Richard

      Oh so it’s time for a bit of the old gaslighting then? How is it you think that’ll be effective, exactly? Do you really not get that most of the people reading this particular blog know someone injured there?

    2. Brian

      I work at a personal injury office. We’ve had about 4-5 calls about injuries in this location in the last 2 years. Assuming we’re not called about every single incident it stands to reason that there have been more than that many instances.

    3. Jort

      If you’re asking this question in good faith (and it’s pretty easy to assume you’re not, you’re just trolling) you can review some of the city’s collision data here: https://data-seattlecitygis.opendata.arcgis.com/datasets/5b5c745e0f1f48e7a53acec63a0022ab_0/data?geometry=-122.401%2C47.664%2C-122.365%2C47.669&orderBy=INCDATE&orderByAsc=false&selectedAttribute=PEDCYLCOUNT&where=COLLISIONTYPE%20%3D%20%27Cycles%27

      I would encourage that, before you make a declarative statement like “No one is getting hurt on Shillshole,” you take a few seconds to consider that you are actually wrong and that you shouldn’t be an outright liar. And yes, you are wrong, ACTUALLY wrong, and all the gaslighting and concern trolling in the world will not change the fact that you’re spreading lies.

    4. Z

      My feelings get hurt when I ride Shilshole (and Leary and Market for that matter) on account of the poor maintenance, impatient drivers and parked cars on both sides. The only non-car sewer is Ballard Ave which the Farmers Market occupies on popular ride days. I’m rather fortunate that I haven’t been physically injured despite the lack of a proper route. I have seen plenty of others who took tumbles. Also fortunate: tumbles rarely lead to serious injury. Perhaps we should factor them into your figures anyway.

  2. Ballard Biker

    I’m missing something then. I clicked on all the dots along Shilshole and didn’t see anything after 2018. Is there a data field I’m not selecting? Again, the section under the Ballard Bridge is a disaster. Shilshole not so much.

    1. Jort

      Look closer, troll. It’s there and don’t play dumb like this isn’t real.

    2. Brock

      After 1/1/2019, I see 2 bike-car collisions on Shileshole that resulted in injuries and reports to police/fire.

      I haven’t counted up all the collisions, but it looks like these two crashes probably account for 10-15% of the collisions on Shileshole.

      As others have said, there are a fair number of collisions/crashes that aren’t reported to the police. Some of these folks do wind-up attempting to pursue civil legal recourse.

  3. Ron P

    This annoys me so much. I am leaving a bunch of bad reviews for the businesses who are part of the ballard coalition.

  4. Brad Kahn

    I have never understood why the city doesn’t continue the B-G down Market onto Leary, following the commercial district (rather than turning through an industrial district where all the fight happens).

    1. Richard

      Because the only option to do so would involved a bike *lane*, whether separated or otherwise, rather than a true recreational trail. This proposal would solve the problem for commuters and confident cyclists, but would not fulfill the purpose of the Burke-Gilman Trail, which is intended to be a highly accessible recreational trail accessible to all ages.

    2. asdf2

      Because there’s no good choice for what to do once you get to Market. The sidewalk is too narrow and already full with pedestrians. Taking a traffic lane would delay both cars and transit. Market has a lot more traffic east of 24th than west of it.

      Also, at this point, giving in would set a very bad precedent for future projects.

  5. Bob

    Re: “This is another significant setback because the City, for a fourth time, has to completely re-do SEPA for the Missing Link, further wasting tax payer dollars,” Ballard Coalition attorney Josh Brower said in a press release celebrating the decision.

    1. Wow, the chutzpah to complain about the waste of taxpayer dollars.

    2. Is it correct that the SEPA has to be redone? It sounds like a procedural issue on the Hearing Examiner’s side. Why wouldn’t the existing SEPA go before the new Hearing Examiner?

    1. Steve Campbell

      Probably. My guess is if the City doesn’t at least review the SEPA report and update it the Ballard Coalition will use that fact to appeal.

  6. Ballard Biker (OG)

    There is someone posting under my user handle. They seem to be doing some weird concern trolling.

    For the record, I’m very aware of the crashes that continue to happen on the Shilshole tracks crossing here and other places in the city. I’m also very much in favor of finishing the Missing Link decades ago.

    1. Tom Fucoloro

      Ah, I should have looked more closely at the other “Ballard Biker.” I thought it was strange you were suddenly an injury denier. Thanks for clearing that up. Maybe this is an excuse to finally modernize this comment system…

  7. eddiew

    Brad Kahn: why not use NW Market Street and Leary Way? They carry many transit trips on routes 40, 44, 17, 18, and 29. It is best if Seattle places bike and bus infrastructure on different arterials. Transit riders have have to go between the sidewalks and the buses. NW Market Street is fully allocated. I bike on it, but I am not in the eight to eighty crowd.

    While we wait, let’s ask SDOT to remove the unused tracks on 14th Avenue NW crossing Leary. They once were a siding that served Bardahl. In the 30s, there may have been a streetcar. But now, the empty rails are a hazard, especially when wet.

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