Today the Seattle Office of the Hearing Examiner released its decision on the latest appeal of the city’s attempt to complete the “missing link” of the Burke-Gilman Trail through Ballard. The examiner affirmed the validity of the Final Environmental Impact Statement, which clears the project to go forward unless it is appealed further up the line.
The city’s work on a plan to complete the missing link has been ongoing since 2001, and the project’s history since then is a testament both to government bureaucracy and to the ability of committed activists to block a project by tying it up in legal proceedings.
The State Environment Protection Act (SEPA) requires that projects be evaluated for their impact on the environment, and if the impact meets the threshold of “significant” it requires a full Environmental Impact Statement (EIS). That requires publishing a draft EIS, holding a process for public comment, and then issuing a final EIS (FEIS). The FEIS isn’t itself a greenlight for a project; that’s still left up to the appropriate officials. But it ensures that there is a robust and transparent discussion of the impacts of the project and what it would take to mitigate negative impacts.
In November 2008, SDOT issued a Determination of Nonsignificance (DNS) on the project, i.e. no EIS was required because the impacts were not significant. The DNS was appealed to the Hearing Examiner, and in June 2009 the Hearing Examiner affirmed the DNS. The Hearing Examiner’s ruling was appealed to King County Superior Court, which ruled in June 2010 that SDOT had impermissibly piecemealed its review of the project and sent it back to SDOT for a do-over.
SDOT issued a revised DNS in February 2011. It was again appealed to the Hearing Examiner, who again affirmed it in July 2011. It was again appealed to King County Superior Court, which in March 2012 again remanded it to SDOT for more work.
SDOT issued a third DNS in April 2012. It was again appealed to the Hearing Examiner, and this time the Hearing Examiner found that an EIS was required for the “Shilshole segment” and sent it back to SDOT to write the EIS.
SDOT decided to prepare an EIS for the entire Missing Link project, not just the Shilshole segment, and to include evaluations of alternative routes. They published a draft EIS in the summer of 2016, and the final EIS in May 2017. It was promptly appealed, once again, to the Hearing Examiner, leading to today’s decision.
In the meantime, the city has continued design work on the Missing Link. At the time the draft EIS was published, the project was 10% designed; today it’s 90% designed, and a preferred path through Ballard has been chosen.
(it’s ok if you need to go take a nap now — I think we all deserve one after that)
The appellants, Ballard Coalition, are a group of industrial businesses along the Missing Link who are concerned about the hazards inherent in having the Burke-Gilman Trail run across their driveways. The city counters that cyclists are already moving through the “missing link” to bridge between the pieces of the trail, and completing the missing link will reduce the hazards that already exist by funneling traffic, redesigning streets to separate bikes and pedestrians, and increasing signage to raise awareness.
The test for the adequacy of an EIS is whether it presents decision makers with “a reasonably thorough discussion of the significant aspects of the probably environmental consequences” of the decision. It’s judged by the “rule of reason,” “a broad, flexible cost-effectiveness standard,” and on a case-by-case basis.
The appellants fired a legal blunderbuss at the Final EIS in the hope that the hearing examiner would find validity in enough to send it back for more work and continue the process of delaying the project. Their arguments include:
- The EIS used the PM peak traffic hour to estimate maximum transportation delay, when it should have used the peak “truck hour” instead. However, the appellants didn’t demonstrate how using peak “truck hour” would have made any difference, nor how it would meet industry standards for traffic analysis.
- The EIS only looked at “contraflow” designs for the trail, in which non-motorized traffic flows both ways on a single trail, and didn’t consider alternative designs of two separate single-flow trails. But the Hearing Examiner pointed out that the rest of the Burke-Gilman Trail is contraflow, and using a different design for the “missing link” wouldn’t meet the stated goals of the project.
- The EIS didn’t analyze parking impacts on a block-by-block basis. But the Hearing Examiner noted that analyzing it block-by-block does not take into consideration underutilized parking within easy walking distance. The appellants also failed to demonstrate how parking one block away would have a significant negative impact on drivers or businesses. Further, the parking analysis was consistent with industry-accepted standards and is “legally adequate under the rule of reason.”
- The appellant’s own economic analysis indicated that the project will cause “adverse economic and land use impacts,” but that analysis was based on reports on economic conditions of the Seattle area, not specifically of the project area, and it didn’t identify any specific impacts that would occur because of the project.
- The appellants pointed to the softening of some language, and the removal of other text, between the draft and final EIS that had the effect of lessening the perceived impact on traffic. The author of that section of the report testified that he had made those changes because “he was not certain the available evidence supported the definitive nature of the findings in the draft.” The final version still notes that there may be traffic impacts that should be considered seriously and mitigated as necessary.
- By state law in an appeal of an FEIS “the decision of the governmental agency shall be accorded substantial weight.” But the appellants argued that the Hearing Examiner should not grant the city that deference because it had violated city law by continuing to work on designing the Preferred Alternative. However, the Hearing Examiner pointed out that the law specifically allows for continuation of design work.
- The appellants argued that the EIS is insufficient because it was based on 5-10% design, rather than later in the design process when more of the details are available. They also point to the fact that the earlier DNS was issued using a higher level of design. The Hearing Examiner noted, however, that there is no minimum level of design that is required for adequacy of an EIS, and that there was testimony to the extent that the 5-10% designs used were adequate for the purpose of evaluating the impacts.
In the end, the Haring Examiner concluded that “the weight of the evidence presented supports the determination of the FEIS that the Preferred Alternative will improve safety for non-motorized users over existing conditions. With regard to the concerns for safety raised by the Appellant, many of these are existing conditions for cyclists, and are not created by the Missing Link proposal.”
With that, the Hearing Examined affirmed that the FEIS is adequate. The Ballard Coalition has 21 days to either file a Motion for Reconsideration, or to appeal it to King County Superior Court (again). Assume they will, which will likely tie it up in court for another year.
Nevertheless, advocates for the Missing Link project, including the Cascade Bicycle Club and Council member Mike O’Brien, celebrated today’s ruling.
Two weeks ago, O’Brien’s committee heard an update on the Missing Link project design work and outreach. You can check it out here or watch the video on Seattle Channel.
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Great synopsis of the legal history
thanks — much credit goes to the hearing examiner, who exhaustively laid out the history in the ruling. A valuable resource.
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