City-wide MHA upzone Environmental Impact Statement jumps first hurdle with the Hearing Examiner

The Hearing Examiner’s Office has been adjudicating nine separate challenges by neighborhood organizations to the Final Environmental Impact Statement (FEIS) for the city’s city-wide MHA upzones. After a hearing on May 31 to discuss several motions for summary judgment, last Friday the Hearing Examiner issued rulings — and it largely went in favor of the city. The appeals are far from resolved, and won’t be until early fall, but several issues were taken off the table as potential flaws in the FEIS.

Environmental Impact Statements are very complicated things. They are required under state law when a city project or initiative will have a significant impact on the “environment,” defined broadly. The point is to ensure that policy makers are working with complete information, and are doing so publicly and transparently. The EIS must accurately describe what the proposal intends to do, alternatives to that proposal (including the alternative of doing nothing), the impacts of both the proposal and the alternatives, and potential mitigations to negative impacts.

Proposals requiring an EIS can be for a specific project, such as the Ft. Lawton affordable housing redevelopment or the Key Arena remodel, or a programmatic effort such as the city-wide MHA upzone. Programmatic EIS’s aren’t required to go into the level of detail on the potential impacts that project-based ones are. Also, policy makers aren’t obliged to choose the alternative that has the least impacts or the one that can be mitigated to the largest degree; but the requirement to do an EIS forces them to study different options and (hopefully) to explain to the public why they are choosing a particular option despite its impacts. Policy makers also don’t have to mitigate all impacts; again, the EIS process doesn’t force a particular choice, it simply shines sunlight on the options and their impacts.

After the city published its final EIS for the city-wide MHA upzone, nine groups filed appeals:

  • the Wallingford Community Council;
  • the Morgan Community Association;
  • Friends of Ravenna-Cowen;
  • Seattle Coalition for Affordability, Livability and Equity (aka “SCALE”);
  • Seniors United for Neighborhoods;
  • the Beacon Hill Council of Seattle;
  • Friends of the North Rainier Neighborhood Plan;
  • West Seattle Junction Neighborhood Organization;
  • the Fremont Neighborhood Council.

The Hearing Examiner has consolidated them into one proceeding. Several days of testimony are scheduled for later this summer, but at the moment the focus has been on competing motions for summary judgment on specific issues. As with regular court cases, motions for summary judgment may be granted when there are no material facts in dispute among the parties (so no testimony or findings of fact are required) and it is simply a question of interpreting the law.

The City of Seattle filed a handful of motions for summary judgment, asking for dismissal of some of the claims by the nine appealing parties. The appellants also filed several motions for summary judgment, mostly around specific faults they assert with the FEIS that they claim are fatal and require the city to go back and redo it. Collectively, the appellants’ cases give the impression of throwing everything but the kitchen sink at the FEIS in the hope that something actually derails it.

So far, though, nothing has. In his ruling last Friday, the Hearing Examiner rejected all of the appellants’ motions. For several of them, he found that there were still issues of material fact that needed to be resolved; that means the issues can still be argued in the hearings later this summer (and no doubt will be), but they don’t amount to a quick win for the appellants. Other motions were dismissed outright as a matter of law, which takes those issues off the table for the remainder of the Hearing Examiner’s review of the appeals. On the flip side, many of the city’s motions were granted, though not all. The motions decided include:

  • The Hearing Examiner agreed with the city that prior environmental reviews are not relevant for judging the adequacy of this FEIS.
  • He also agreed with the city that amendments to the city’s Comprehensive Plan may be considered as part of the proposal studied by the FEIS.
  • He agreed with the city that the FEIS doesn’t need to study the adequacy of mitigation measures — though it does need to provide adequate analysis of those mitigation proposals.
  • He agreed with the city that the FEIS does not need to address impacts not directly attributable to the proposed action. The Beacon Hill Council had argued that the high noise level in their community due to being on the Sea-Tac Airport flight path was an issue that needed to be addressed in the FEIS if the city intended to increase housing density there; the Hearing Examiner disagreed.
  • The Hearing Examiner found that it was acceptable for the city to use a “phased review” approach to the FEIS, and that the city correctly followed the requirements for doing so.
  • He ruled that as a matter of law, the FEIS is not flawed because the city wrote a “programmatic” instead of a “project-based” EIS.
  • He also ruled that the city met its public notice requirements under the law. The appellants argued that the notice process could have been better and more inclusive, but failed to show that it was not legally compliant. The law requires that notices be published in the “official city newspaper,” which is the Seattle Daily Journal of Commerce, not the Seattle Times.

Among the issues that the Hearing Examiner refused to issue summary judgment for because there are still issues of fact in dispute, are:

  • whether the FEIS alternatives analysis is adequate (the city asked for summary judgment on this issue, but lost);
  • whether the analysis concerning historic resources is adequate;
  • whether the analysis concerning the tree canopy is adequate;
  • whether the analysis concerning the impacts of zoning changes outside urban villages is adequate;
  • whether the analysis of the proposal’s consistency with all Comprehensive Plan policies is adequate;
  • whether the analysis concerning open space and recreation is adequate;
  • whether significant impacts would result from the expansion of the Roosevelt Village into the Ravenna neighborhood. The Friends of Ravenna-Cowen argued that there would be impacts, but failed to explain what those impacts would be.

Those are all still live issues; the Hearing Examiner’s rejection of summary judgment motions means that their resolution will come after testimony is heard.

A big issue that didn’t get directly addressed — but both sides put forth arguments about — is whether the alternatives provided in the FEIS are adequate. The appellants argued that the alternatives need to reduce the environmental impact, but all three have the same impact. The city argued that in appealing the FEIS on this point, the appellants bear the burden of presenting a different alternative that would still achieve the city’s proposed objective, but failed to do so.

After a pre-hearing conference scheduled for today, there are three weeks of hearings scheduled for this appeal:  June 25-29, July 23-27, and August 20-24. That means that the Hearing Examiner is won’t make a final ruling until September at the earliest.  In the mean time, the City Council Select Committee is finishing up its public hearings on the proposed upzones, and on July 16th begins work in earnest on amendments to the legislation. However, the Council cannot actually pass it into law until the FEIS appeal is resolved.

 

 

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