This morning the city’s Office of the Hearing Examiner issued a long-awaited ruling on the Queen Anne Community Council’s appeal of a proposed ordinance relaxing the rules on “backyard cottages.” And it wasn’t good news for the city.
The Queen Anne Community Council filed its appeal back in June, claiming that the Office of Planning and Community Development (OPCD) erred in its Determination of Nonsignificance for the ordinance because of the manner in which it conducted the SEPA review for the project.
SEPA requires that an Environmental Checklist be completed for the proposed legislation, and under some circumstances a full Environmental Impact Statement (EIS) if the proposal is “likely to have a probably significant adverse environmental impact.” OPCD concluded that because the legislation isn’t a “project” in itself, and because in its estimation the impacts were minimal, it didn’t trigger an EIS. It quickly issued a Determination of Nonsignificance that allowed the bill to move forward. But the QACC claims that OPCD’s SEPA review process was flawed in several ways, and in fact a full EIS is required.
The standard for overturning a Determination of Nonsignificance relies upon proving that it was “clearly erroneous.” OPCD was required to do two things in its SEPA review:
- demonstrate that “environmental factors were considered in a manner sufficient to amount to prima facie compliance with the procedural requirements of SEPA;”
- decide to issue the DNS based on “information sufficient to evaluate the proposal’s environmental impact.”
QACC needed to present evidence showing that OPCD failed to meet either or both of these requirements. And they did, according to the Hearing Examiner.
The Hearing Examiner dismissed many of QACC’s claims early on, and in the final decision dismisses more of them. But she found compelling evidence that OPCD did make several mistakes in its SEPA review.
First, the OPCD staff who worked on the legislation also did the SEPA review. Seattle Municipal Code explicitly says:
Whenever possible, agency people carrying out SEPA procedures should be different from agency people making the proposal.
OPCD is a large enough organization that it easily could have assigned other personnel to do the SEPA review. Further exacerbating the issue, QACC presented in evidence OPCD’s own internal emails that showed that their staff were vocal advocates for the legislation — including the staff doing the SEPA review. The Hearing Examiner agreed that OPCD erred here, but concluded that this mistake alone was not sufficient to overturn OPCD’s Determination of Nonsignificance (meaning an EIS is not required).
The Hearing Examiner also found that OPCD did not sufficiently consider the adverse impacts of the legislation on housing in single-family neighborhoods that would cause displacement. Specifically, QACC presented evidence that the combination of allowing both an ADU and a DADU on the same property and relaxing the requirement for owner-occupancy, would allow for creation of lots in single-family zones with three separate rentable units. It would also increase the value of such properties by up to 20%, further encouraging both direct displacement (where a property is sold to a developer) and indirect displacement (where the increasing property values make it unaffordable for existing residents). OPCD based its economic predictions of ADU and DADU construction based upon the existing economic model, not the new one in the proposed legislation. Part of this, of course, is a debate about whether the changes in the legislation do, in fact, create a new economic model, and the Hearing Examiner agreed with QACC that they do.
QACC also argued successfully that OPCD “failed to consider the proposal’s impacts on height, bulk and scale and that the DNS and Checklist do not accurately represent the magnitude of development allowed by the proposed legislation.” In essence, OPCD cherry-picked a couple of illustrations of what would be allowed under the new legislation that understated the true impact. They didn’t provide illustrations of what could potentially happen to an entire block, or of larger DADUs on lots less than 5000 square feet (which the new legislation allows for).
The Hearing Examiner also found OPCD’s analysis of parking impacts to be inadequate, with “no citation to any studies or other objective data as the basis for the conclusion that parking impacts would be minor.” She also faulted OPCD for not even bothering to consult with the city’s own transportation planner in the Department of Construction and Inspections.
Finally, the Hearing Examiner faulted OPCD’s analysis of impacts on public services and facilities, including roads, utilities, and the stormwater system. OPCD drew its conclusions based upon the current dispersion of ADUs and DADUs around the city, rather than what the new proposal might cause. OPCD also argued that since the new proposal would maintain the current limit of 8 people living on a lot (across the main residence, the ADU and the DADU), it would not increase demands on public services and facilities. But the Hearing Examiner noted that few single-family lots today actually have eight residents, so that logic doesn’t count for the real potential for increases in occupancy. “There is no information in the record to indicate whether or not they are sized to support the likely increase in density, and attendant increase in impermeable surfaces, that would result from the proposed ordinance.”
Given these conclusions, the Hearing Examiner reversed the Determination of Nonsignificance and ordered OPCD to prepare an EIS. This doesn’t kill the backyard cottage ordinance, though it delays it for several months until the EIS is completed. In addition, the city will need to mitigate any significant impacts that are documented in the EIS as part of adopting the ordinance.
More significantly, the Hearing Examiner’s finding is a stinging rebuke for OPCD and its new Director, Sam Assefa. It clearly points to sloppy, biased work within the department.
In an interview this afternoon Council member Rob Johnson, who chairs the committee that oversees OPCD, quickly came to OPCD’s defense. While admitting that the agency had made mistakes in the SEPA review, he noted that the Hearing Examiner overturning an OPCD action was a rare exception — Johnson said it was the first instance “in a long time.” Nevertheless, “Sam and I need to have a conversation about the training his staff are getting on this sort of thing.” But for the most part, Johnson is looking to the future, saying “We’ll correct the mistakes and move forward.” He expects it will take about a year to complete the EIS, and if all goes well he hopes that the Council will be able to take up the proposed ordinance in early 2018.