Catching up on the backyard cottages legislation

Back in October, the city issued its final environmental impact statement (FEIS) on proposed legislation loosening rules on building “backyard cottages” in single-family zones in Seattle, as well as a Racial Equity Toolkit evaluation of the impact of the legislation on racial disparities in the city.  To no one’s surprise, an appeal has been filed against the FEIS — but the city is fighting back.

The appeal was filed back in October by the Queen Anne Community Council, the same organization that appealed the city’s original Determination of Nonsignificance. They won that case, which resulted in the Hearing Examiner remanding the issue back to the city to complete a full EIS on four issues where it found the city’s DNS to be lacking:

  1. Housing and displacement of populations;
  2. Height, bulk and scale;
  3. Parking;
  4. Public services and facilities.

Truth be told, it was more of a partial win for the appellants; the hearing examiner found that the DNS was justified for several other issues that they raised. Still, it was enough to block progress on the legislation.

With its appeal on the final EIS, the Queen Anne Community Council once again filed a long list of objections, including:

  • the city failed to run a fair and open process, and violated state and federal procedural due process requirements;
  • the FEIS fails to adequately disclose, discuss and analyze a long list of factors;
  • the the FEIS fails to consider an adequate range of alternatives to the preferred alternative;
  •  the FEIS fails to analyze direct, indirect and cumulative impacts.

But in late November the city struck back, filing a motion with the Hearing Examiner to dismiss many of the claims in the appeal. It stated three grounds:

  1. The city followed all state requirements for the EIS, and in fact over-delivered on some, therefore the procedural objections are groundless;
  2.  All of the objections that the Queen Anne Community Council raised when it appealed the city’s original Determination of Nonsignificance, except for the four listed above, were dismissed on the merits. Under the principle of “res judicata” in which the same case may not be filed twice, they are not allowed to re-assert them. New objections that were not raised against the Determination of Nonsignificance also cannot be raised at this point, again under the principle of res judicata, which prohibits plaintiffs from splitting their objections across multiple cases to extend litigation; so long as the parties, the cause of action, and the facts are in common, plaintiffs may only file once. In a nutshell: since the hearing examiner remanded the Determination of Nonsignificance back for a full EIS on just the four issues, the appellants may only raise issues in their appeal related to those four.
  3. The city argues that some of the appellants’ objects are vague, overly broad, and unspecified. Plaintiffs are required to make their claims specific so that defendants can prepare an informed defense, and so plaintiffs are unable to make their case a moving target by shifting its definition as the case proceeds through litigation.

The Queen Anne Community Council’s legal strategy so far has been typical for this sort of appeal: throw everything at the FEIS and see what sticks. And the city’s response is also typical: whittle it down as much as possible by arguing for dismissal of many of the issues raised. The recent appeal of the FEIS for the city’s MHA legislation proceeded exactly the same way. As with that case, here the city is likely to prevail in having much of the case thrown out, and the Hearing Examiner will proceed forward with a close examination of the four topics that were the subject of the FEIS.

The appellants are scheduled to submit their response to the motion by this Friday, and the city will file its reply by December 21.

The Hearing Examiner has scheduled the hearing to begin on March 25th. Before then, he will rule on the city’s motion for partial dismissal, and both parties will be required to submit lists of evidence and expert witnesses they intend to introduce during the hearing (the Queen Anne Community Council by February 12, and the city by February 19th).

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