Last week I reported that the City of Seattle’s Hearing Examiner had reopened the hearing on the city’s SEPA Determination of Nonsignificance, the first step in establishing Transportation Impact Fees in Seattle. Hearing Examiner Ryan Vancil asked the parties to come back in so he could pose some additional questions to them that he felt weren’t thoroughly briefed in their filings to-date.
That meeting was this afternoon; it lasted only twenty minutes, enough time for Vancil to lay out his four questions and for the parties to agree on a schedule for additional briefs.
Vancil began today’s hearing by stressing that he has not made a decision, and so no one should try to read into his questions any hints as to how he plans to decide the case.
His four questions were mostly a request for both sides to point to relevant case law. Case law has an interesting twist for the Ofice of the Hearing Examiner, because according to Vancil the Hearing Examiner’s decisions don’t carry precedential value. To the extent that this is true, case law must cite cases that were heard in other courts, either directly or as appeals of Hearing Examiner decisions.
A quick refresher on how we got here: in order to impose Transportation Impact Fees (TIFs), the city must amend the Comprehensive Plan with a list of transportation projects that would be the beneficiaries of TIFs if/when imposed. The city proposed that list and did the initial SEPA analysis, finding that there were no significant impacts to the list. Part of the logic is that this amendment doesn’t actually approve the projects or even commit the city to doing them; it merely says that if TIFs were imposed, the revenues could only go to those projects if later approved. The Seattle Mobility Coalition appealed the Determination of Nonsignificance, arguing three points:
- the city is illegally “piecemealing” the SEPA analysis by separating out the TIF project list from the projects themselves.
- the SEPA analysis is inadequate because it is missing critical information on the impacts of the projects;
- the projects in the list have significant impacts.
Vancil’s job is to decide whether the city’s approach to SEPA analysis of a TIF project list is appropriate and legal. As to his questions today, they were fairly arcane issues related to the order in which Vancil must make findings as he steps through the logic of his decision.
- If he finds that the appellants have not demonstrated the probability of significant impacts, can they prevail on either question of “piecemealing” or inadequate analysis? On the inadequate analysis question, appellants face a heavy burden in appealing a SEPA determination: they are required to show not only that the analysis was inadequate, but also to present evidence that the determination (i.e. the DNS) was in fact wrong. So Vancil is asking whether he must send the DNS back to the city for further work if he finds that it was inadequate but the appellants can’t show significant impacts.
- Are the “piecemeal” question and the “inadequacy” question really the same issue, i.e. is it de facto inadequate because it didn’t do a full SEPA analysis of each project in the list?
- In the case of a SEPA analysis on a list of TIF projects such as this one, what is required for a basic level of compliance — what information must be included (independent of whether the information included is actually correct)?
- The SEPA analysis checklist includes a “Section B” with a list of environmental elements to be considered, including earth, air, water, plants, and animals (and many more). But the instructions on the checklist read: “The lead agency may exclude (for non-projects) questions in Part B – Environmental Elements –that do not contribute meaningfully to the analysis of the proposal.” Vancil asked both parties for case law on how much of Section B needs to be completed by the city for this type of SEPA analysis — which is one more take on the issue of whether this is truly a “non-project” action when it contains a list of projects (albeit ones that the city is not directly trying to approve — only trying to get future TIF funding for).
Vancil made it clear that he feels under pressure to get a decision out quickly. To that end, he scheduled both sides to deliver their initial briefs, answering the four questions, by September 6th, with response briefs due September 11th. Assuming those deadlines are met, he hopes to issue his decision the week of September 16th.