Ft. Lawton redevelopment plan draws expected legal challenge

Two weeks ago, serial “neighborhood activist” Elizabeth Campbell filed a lawsuit challenging the recently-passed Fort Lawton redevelopment plan on a laundry-list of issues.

Campbell and her front-organization, the Discovery Park Community Alliance, originally challenged the Environmental Impact Statement for the Fort Lawton project; when the Hearing Examiner ruled against them, further appeals needed to wait until after the city actually took action based on the EIS. Now that the City Council has approved the redevelopment plan and the corresponding rezone of part of the property, Campbell filed her appeal of the EIS, as well as other challenges to the plan and rezone, as one consolidated lawsuit in King County Superior Court.

Here are the issues the lawsuit raises:

1. It alleges that the redevelopment plan contradicts the city’s stated policies in its Comprehensive Plan. It asserts that the Comprehensive Plan’s goal (LU G14), “Maintain the city’s cultural identity and heritage,” has been violated because the property “was historically public and located in a single-family residential area.”  This, of course, is nonsense, since that goal is directed specifically towards preserving historic resources. It also ignores the Comprehensive Plan goals related to housing and specifically to single-family and multi-family areas. And more importantly, that under the Comprehensive Plan the Fort Lawton area is already designated as “multi-family.”
2. The revised redevelopment plan has been substantially altered from the original one submitted in 2007. Because of that, the complaint argues that the city is required to revisit all the steps that the federal Base Realignment and Closure Act (BRAC) requires for redevelopment plans. That includes re-opening the “Notice of Interest” process for public and non-profit entities to express their interest in some or all of the property. True, the city didn’t re-open the NOI when it rewrote the redevelopment plan, and while the number of housing units in the new plan is nearly the same as the original one, the mix of types is different, as is their placement on the land.  But while the BRAC is detailed on how redevelopment plans should be developed, it’s largely silent on the process for revising them. Seattle’s original plan was accepted by the Department of Defense before a court found fault with the underlying EIS; that makes it unclear what procedure applies to the process of revising it. The court will need to sort this out.
3.  Seattle Public Schools wants to build a school on the site. Not true — the agreement between the city and SPS says so clearly.
4. The city missed several deadlines in the process of creating its redevelopment plan, and thus is “time barred.”  BRAC lays out specific deadlines that a Local Redevelopment Authority (which Seattle was named for the Ft. Lawton Property)  must meet.  The city missed most of the statutory deadlines. But BRAC also gives the Department of Defense broad authority to extend those deadlines, and the ability to negotiate with the city during the development and approval of the redevelopment plan. The complaint argues that the city never formally applied for extensions, but BRAC requires neither formal written requests nor formal written extensions. The letter from the DoD accepting the original redevelopment plan, which says that the city has met all requirements under BRAC, is tacit affirmation that extensions were granted, so this issue is mostly just noise.
5. The city’s rezone of a portion of the Ft. Lawton property failed to meet the conditions and procedural steps for a rezone under Seattle Municipal Code. The complaint asserts that the rezone is a “Type IV” rezone under Seattle Municipal Code, one of two types that the City Council can make. Type IV rezones are usually for specific lots, require a specific application (usually by the property owner), and are “quasi-judicial” proceedings with a number of required steps (publishing a public notice, a formal land use application, filing a report with the Hearing Examiner, and the Hearing Examiner holding a public hearing).  But there’s a strong case to be made that it’s actually a “Type V” rezone, requiring much fewer hoops to jump through. If the court rules that it is indeed a Type IV, then the city will need to re-do the rezone process. But if it’s found to be Type V, they did everything right — almost.  The one procedural issue that the complaint alleges appears to have legs is that the paperwork submitted for the rezone failed to specify the legal description of the area to be rezoned — it simply provided a vague map. It’s fairly easily fixed, but it looks like a rookie mistake on the part of the city.
6. It asserts that since Seattle Public Schools didn’t respond to the Notice of Interest process for the original redevelopment plan, the city is not allowed to include SPS as a partner in the revised plan. However, the BRAC’s language around the Notice of Interest is loose: it doesn’t say that the city may only partner with organizations that respond; it merely says that the city must “consider” the responses of those that do. It also has language encouraging the “informal” solicitation of responses from government and non-profit agencies, which could be interpreted as an implication that everything should be funneled through the NOI process, but alternatively that the process as a whole is informal. Another thing for the courts to sort out.
7.  The revised redevelopment plan contains a copy of a “legally binding” lease agreement with the Archdiocesan Housing Authority. The complaint argues that since the agreement is legally binding, the Council needed to approve it (and the whole redevelopment agreement) by ordinance, rather than by resolution (as it did). However, BRAC states that the redevelopment plan must include copies of legally binding agreements that the city proposes to enter into — and recognizing that they are not approved yet, an accompanying opinion from the “chief legal authority” for the city saying that when executed the agreement will be legally binding. So this is a misreading of the law’s requirements.
8.  It argues that the proposed partner organizations who will be receiving funding from the Office of Housing to build housing have not submitted Community Relations Plans as required by the Office of Housing for funding grant applications. However, the organizations have not actually submitted applications for funding yet, and the timeline for the project as submitted with the redevelopment plan specifically notes that the funding applications will be submitted in 2021 or later. It is a little strange that the partners have been chosen and announced, and proposed funding amounts published, without the funding applications done, but like with the lease agreement it’s essentially the only way to break the circular dependencies in this kind of project: you can’t submit the redevelopment plan without the partners lined up, and you can’t do all the funding paperwork until the redevelopment plan is submitted and approved.
9. It alleges that there was no public comment on the Homeless Assistance  submission attached to the redevelopment plan. Since BRAC specifically calls out homeless programs as the focus and priority for redevelopment plans, a Homeless Assistance plan is required as part of the submission, and BRAC says that drafts of the plan must be shared with the public while it is in development. No doubt the homeless assistance plan came in later than the rest of the redevelopment plan, and didn’t have its own formal public comment period, but it was published on May 2 and was the subject (along with others) of a public hearing on May 21. This really comes back to the issue raised earlier about the lack of a specified process for revising an accepted redevelopment plan. The complaint argues that there wasn’t enough public process, but what constitutes “enough” is unclear at this point.
10. A rehash of the complaints raised against the Environmental Impact Statement, that were all reviewed and dismissed by the Hearing Examiner. Campbell has the legal right to appeal the Hearing Examiner’s decision in King County Superior Court, but that doesn’t guarantee the court will view her complaints any more favorably.

A hearing on the merits is scheduled for November 25th.  Expect the city to file a motion to dismiss well before then, as the city is required to under its current lease agreement to have its final redevelopment plan submitted by January 1, 2020. Also don’t be surprised if the Council rushes through amendments to the rezone and redevelopment plan to fix some of the minor errors.