Blaine businessman sues DOT

Published on Wed, Mar 31, 2010 by Tara Nelson

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The Washington Department of Transportation should compensate a Blaine business owner for obtaining rights-of-way access to his property and do so before the construction of two roundabouts begins, according to a lawsuit filed last week.

The lawsuit was filed on behalf of Blaine Subway owner Dale Schrader in Whatcom County Superior Court Wednesday, March 24, by Bellevue-based attorneys Dick Stephens and Samuel Rodabough. Schrader owns two Subway sandwich stores in Blaine, one of which is located at 429 Peace Portal Drive, adjacent to where DOT crews plan on installing one of the single lane roundabouts.

Court documents allege the $7.8 million project will leave that property with no public or private access to parking spaces located behind the building and that Schrader would be “landlocked to all vehicular access.” Because of this, Schrader and his attorneys are requesting financial compensation and an injunction barring WSDOT and Interwest Construction, Inc. from commencing any portion of the project that would block Schrader’s access until that money has been paid.

As it is now, customers can access the property from driveways off Marine and Peace Portal drives and park behind the building. But Stephens said that could change as the DOT has acquired access rights to both of those driveways.

“Customers could still feasibly cut across through private property owned by Burlington Northern Railroad or a privately-owned driveway from Marine Drive but they’re going to put up a curb and there will be no curb cuts from those streets,” Stephens said. “This project completely separates Schrader from every public street, that’s what this suit’s really all about. They’re not supposed to leave people with zero access.”

DOT assistant regional administrator Todd Harrison said he was “perplexed” by the lawsuit because the DOT does not plan on restricting access that isn’t already there. He added that, according to DOT records, the driveways in question are already owned by other property owners.

“We’re buying the access rights but we will allow access onto that parcel,” he said. “We’re not going to close it off with curbing or a wall or anything like that. We’re going to leave those open. Even during the nighttime work.”

The DOT has already offered 11 landowners $500 compensation earlier this year for rights-of-way access to their driveways but Tom Bridge, who formed Business United, a group of Blaine property owners who oppose the project, said at least five of those owners refused to sign. Bridge, a Bellingham resident, owns the Drayton Harbor building, a multi-use building on Peace Portal Drive with both residential and commercial units.

He said he was concerned about possible financial impacts of a stipulation in the rights-of-way buy-out that would require him to get DOT approval before being able to expand his apartment complex in the future because it could create more traffic near the intersection.

Since the group’s initial complaints, however, the DOT has agreed to certain conditions to help mitigate those impacts. Those conditions include installing angle parking on the west side of Peace Portal Drive; installing signs at I-5 exits on which businesses can advertise; and changing the project’s design to improve delivery access to a driveway on Peace Portal. DOT officials said they are also offering financial incentives for the contractor – Interwest Construction, Inc., of Burlington – to finish the project early and penalties for finishing late.

Schrader also raised an issue with the city and the DOT last summer over the planned removal of several of his parking spaces along Marine Drive but DOT officials countered that because DOT acquired access rights, which restrict egress and ingress from the street, during the 1960s, he was never entitled to those spaces.

Blaine public works director Steve Banham added that because the deed to the property has zero setbacks, he was never entitled to those parking spaces to begin with.

Banham, however, said the city is working with Schrader to try to find an alternative and that could include working with Burlington Northern railroad to lease parking.

“Although he was never entitled to those parking spaces, he’s still a local business owner and because of that, we want to work with him,” he said. “We want to do what we can to help Mr. Schrader stay in business.”

Project engineer Chris Damitio said the situation between Schrader and the DOT is unfortunate because it seems he was not aware the business was operating out of compliance with his rights of way.

In the meantime, Harrison said he hopes the details will be sorted out through the court system.

“But the facts are, we already have access to that property,” he said. “Prior to the project we already owned the access rights along Peace Portal and Marine Drive frontages of Mr. Schrader’s project. We needed to acquire access rights from other property owners but not from Mr. Schrader’s property.”

The Washington state attorney general will defend the DOT’s position in court.

Crews have already started working on the project although they will wait until April 5 for a 50-day closure of a section of D Street under the overpass. Most of the construction should be completed within 118 days.
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