ALERT: Developer files court challenge

Friday, August 11th, 6 pm.

Johnson & Carr – the Phinney Flats developers – have today (Friday) filed a Land Use Petition in Superior Court challenging the Hearing Examiner’s decision in the Livable Phinney case.  We just received this news late today. We will consult with our attorney next week and will keep you appraised of our next steps ASAP.

However, this adds urgency to our request for donations to cover our legal costs.  Sadly, Johnson & Carr prefer to escalate rather than make a few changes to bring “Phinney Flats” into compliance with the land use code and to be a reasonable neighbor.

Please help us with additional donations. Click the button below to donate via credit card, or send a check to Livable Phinney, 6537 Greenwood Ave. Seattle, WA 98103, or drop off a check at the HomeStreet Bank at Greenwood Ave. & 73rd St. Thank you!


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KOMO News: “Phinney Ridge housing project delayed over Metro bus ruling.”

From the KOMO News story, August 2:

Irene Wall and her fellow neighbors with the group Livable Phinney argued that the No. 5 bus doesn’t run frequently enough. Now it’s possible that her battle with the builder could reshape Seattle’s long-term growth plans.

“What we’ve discovered is the city can make mistakes and they do need to be challenged sometimes,” Wall said.

The mistake, Wall said, is how often buses drive by. The developer used bus schedules to say transit was frequent enough that no on-site parking was needed. Members of Livable Phinney checked that against Metro’s actual performance data. They found that bus service failed to meet that every 15 minutes rule nearly 40 percent of the time.

Read the whole story here: http://komonews.com/news/local/phinney-ridge-housing-project-delayed-over-metro-bus-ruling

July 26: Livable Phinney issues press release.

Here’s the text of a press release issued July 26, by Livable Phinney. Click here to download a PDF version.


FOR IMMEDIATE RELEASE: July 26, 2017

Phinney Ridge Appeal Stops Building with No Onsite Parking

SEATTLE – In a decision issued July 24, 2017, Deputy Hearing Examiner Ryan Vancil
reversed and remanded the City’s approval of the controversial “Phinney Flats”
project, a 57-unit building with no onsite parking in the Phinney Ridge
neighborhood. The project had generated unprecedented opposition in the
community.

“This Decision is a game-changer for making the City accountable for
applying the Land Use Code properly,” said Irene Wall, a board member of Livable
Phinney, the Washington nonprofit corporation that had appealed the City’s
approval of the Phinney Flats project.

The Examiner agreed with Livable Phinney that: 1) the building was too
close to the rear property line and violated the required setbacks, and; 2) the
building had an illegal rooftop structure that did not meet the definition of a
clerestory, and that this structure was placed improperly on the rooftop. A revised
building design will be required.

And, in a ruling with city-wide ramifications, the Examiner also agreed with
Livable Phinney that the City was required to look at actual bus frequency, not just
bus schedules, when allowing an exemption from onsite parking requirements. The Land Use Code allows a multi-use project in an Urban Village to proceed without any onsite parking, regardless of parking impacts, if the site is located within a specified
distance of “Frequent Transit Service,” which requires 15-minute intervals between
buses. The City insisted that a bus schedule showing 15-minute intervals was
sufficient.

But Livable Phinney presented a statistical analysis of actual Bus Route #5 bus times, derived from King County Metro data, which showed that actual intervals between buses grossly departed from scheduled intervals.

“While analysis of bus schedules might be sufficient in most circumstances, when
presented with reliable data showing that bus service does not meet the definition
of frequent transit service well over a third of the time over a period of months, the
[City] cannot simply ignore such information,” the Examiner concluded, and
remanded this issue to the City to consider the actual data.

“This is the first time that statistical evidence has been used to show that bus
schedules are meaningless in the ever-increasing traffic congestion in Seattle,” Wall
explained. “When a bus is unreliable, the City cannot expect people to forego their
cars and rely on unreliable public transportation, and people who ride the bus also own cars.” If the project site does not qualify for the “frequent transit service exemption,”
onsite parking will be required. The developer’s own traffic analysis concluded that
the project will generate more cars than can be accommodated on the surrounding
Streets.

In addition, Wall noted, “this decision is timely in light of the city’s ongoing
study of parking code changes and changes to the design review process. Despite
extra review sessions, the code violations were overlooked in the case of Phinney
Flats.”

Although the Examiner upheld certain aspects of the City’s decision, the
Examiner’s reversal on key Land Use Code provisions halts the controversial project
for now.

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CONTACT:
Jeff Eustis, attorney for Livable Phinney: 206-625-9515
Irene Wall, Livable Phinney Board Member: 206-501-9684

Livable Phinney Wins on Key Issues: Phinney Flats Stopped for Now

In a decision issued July 24, the Hearing Examiner ruled in our favor on almost every important issue.

The building must have greater setbacks, the clerestories on the rooftop are unlawful, and the City will be required to evaluate the actual bus headway data we presented before allowing this project to proceed without any onsite parking. This decision will be a game changer for all Urban Villages dealing with the application of Frequent Transit Service parking exemptions.

We will write more later, but we wanted you to know this terrific news. Click here to download the Hearing Examiner’s decision as a PDF.

Thank you for your support in this long struggle! We couldn’t have gotten this far without you. We will be reviewing the decision closely with our attorney to determine next steps.

Livable Phinney has incurred significant legal fees to date. Please help us with additional donations to pay the legal bills for this victory. Click the button below to donate via credit card, or send a check to Livable Phinney, 6537 Greenwood Ave. Seattle, WA 98103, or drop off a check at the HomeStreet Bank at Greenwood Ave. & 73rd St. Thank you!


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June 30 Update: Successful Motion to Supplement the Appeal Record

On June 27th our attorney was successful in getting additional bus headway data into the appeal record. This is good but it may mean some delay in getting a final decision on the substance of our appeal. We anticipate a decision by July 7th or shortly thereafter. Watch this website for breaking news.

MOTION TO RE-OPEN THE RECORD

At the May hearing, we presented statistical evidence that 38% of the time, the #5 bus does not meet the 15 minute headways required to build Phinney Flats without any on-site parking. This was a crucial issue in the appeal. The City and the developer’s attorney argued that two additional trips in the morning added in March could “fix” the problem but they did not produce any evidence to prove this. However following the close of the hearing, we were finally able to secure additional data from Metro and conduct the same statistical analysis showing that even with the added trips, the bus did not meet the headways 37% of the time. This study is now before the Hearing Examiner in addition to the original report and testimony.

The City planners continue to insist that bus schedules, regardless of late arrivals and skipping stops due to full buses, are all that is needed to characterize frequent transit performance. We have argued that actual bus performance data must be considered before eliminating all parking requirements.

The decision will affect all urban villages with so-called Frequent Transit Service. Please share this information with your friends inside and outside Phinney Ridge and urge their support for our cause.

WE STILL NEED DONATIONS TO COVER LEGAL COSTS FOR THIS EXTENDED APPEAL

Since our fundraising begin in early February, we have received 170 donations totaling over $31,000. Individual donations have ranged from $20 to $1,500. Several individuals donated more than once. The Fini Condo Association contributed $2, 500. THANKS TO ALL OF YOU! This shows what a concerned neighborhood can do when challenged with a bad decision. It also shows how expensive land use appeals really are.

BECAUSE we are not done paying the bills!

We estimate the need for another $10,000 to cover the preparation of the closing brief and the unexpected motion described above. Please click to donate:

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Or send a check to Livable Phinney, 6537 Greenwood Ave. Seattle, WA 98103 or drop off a check at the HomeStreet Bank at 73rd and Greenwood.

THANKS FOR ALL YOUR SUPPORT

To join our mailing list, or to ask us a question, please email us at LivablePhinney@gmail.com.

OTHER RELATED NEWS

LAND USE CODE CHANGE REGARDING COSTLY CODE INTERPRETATIONS

One of the expenses associated with this appeal was the requirement to pay a $3,150 fee to the city to get a written explanation of how the planner applied the land use code when approving the project. This fee presents a real financial burden on citizens’ rights to appeal since many times appeals are tossed out because the appellant did not pay for an Interpretation.

Livable Phinney worked with other activists in West Seattle and Council member Lisa Herbold to help resolve this. There is now a code change pending to remove this requirement.

There is a quiet public hearing on the amendment July 18th at 9:30 am in the regularly scheduled Planning, Land Use and Zoning Council Committee. Please write an email by July 17th to council member Rob.Johnson@seattle.gov and cc Ketil.Freeman@seattle.gov in support of Council Bill 118985. Say you support the intent of removing the Interpretation requirement and ask that the effective date of the ordinance be made retroactive to January 1, 2017. The latter request is a long shot but if successful, will help us claw back the fee we paid.

COMPREHENSIVE PLAN AMENDMENT ON SPILLOVER PARKING FROM NEW DEVELOPMENT

The impacts of spillover parking from new development along Phinney/Greenwood into the already full adjacent residential streets was highlighted in the LivablePhinney appeal. Irene Wall, who is also a City Neighborhood Council committee member, proposed an amendment to the Comprehensive Plan to address this situation.

#4. Application by the City Neighborhood Council to amend land use policies to reduce the spillover of parking from urban centers and villages into the surrounding community. Follow this link to read this and other amendments in Clerk File 320265 by searching http://clerk.seattle.gov/~public/CFCF1.htm for File Number 320265.

There will be a Public Hearing on Monday, July 24 at 5:30 p.m. in Council Chambers at City Hall to advocate for amendments to be “docketed” for consideration. Send written comments in support of Amendment #4 to Council member Rob Johnson c/o spencer.williams@seattle.gov.
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June 6: Closing argument filed with Hearing Examiner

Today We Filed Our Closing Argument in this Complex Appeal

Livable Phinney’s attorney submitted to the Hearing Examiner the 70 page “brief” summarizing the reasons that the permit for this 57-unit-with-no-parking project should be vacated and that the City should use its SEPA authority to properly mitigate impacts the project will create instead of being an advocate for the developer’s interests.

What We Want to Accomplish with a Positive Decision by the Hearing Examiner

  • Get full disclosure of the impacts on parking and mitigate them with an appropriate amount of on-site parking
  • Get increased (equitable) setbacks on the northeast side of the building
  • Ensure that SEPA protected view of Green Lake are preserved by reducing the height of Phinney Flats
  • Pull back the clerestory structures to let more sun light reach the building to the north as required by code
  • Use actual bus performance data (not just the schedule) to con rm the 15-minute headway criteria is met before granting parking waivers for all future development

CLICK HERE to download a PDF of Livable Phinney’s closing argument.

Please, Join the “Fund an Hour” Campaign

This has been a long and expensive appeal. The hearing itself consumed 3.5 days, not counting all the preparations time in advance. Many more hours were needed to prepare drafts, review and finalize our closing argument. We are continuing our fundraising efforts to cover all the legal costs.

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Each hour of preparation and hearing cost around $300. If you can fund an hour (or half hour!) please make your contribution to Livable Phinney. Tell your friends in Ballard, Greenwood, Fremont, Roosevelt, Eastlake, West Seattle, Wallingford – all over Seattle—that we need their support. Our win will be everyone’s victory in restoring some rationality to the amount of parking needed by all the new development that’s coming our way.

Please donate online, or send a check to Livable Phinney, 6537 Greenwood Ave. Seattle, WA 98103, or drop off a check at the HomeStreet Bank at 73rd and Greenwood. To join our mailing list, or to ask us a question, please email us at LivablePhinney@gmail.com.

May 17: Post-hearing Bulletin

THE HEARING IS OVER, BUT THE WORK IS NOT DONE YET!

Livable Phinney has raised $25,000 to fund this Appeal. (Thank you, everyone!) But because of the complexity of the issues and the extended length of the hearing we need to raise $12,000 – $15,000 more. The issues we have raised may help restore rationality to development in Phinney Ridge and all over the city. Please support us as we head into the final stages of the Appeal. Read below for details about the hearing and what remains to be done.

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THE HEARING WAS LONG, AND WE MUST SUBMIT A CLOSING BRIEF

Livable Phinney’s appeal of the Phinney Flats development permit went much longer than anticipated. For 3 ½ days (May 2, 3, 4, 5) we presented our case before the Seattle Hearing Examiner (Examiner) and engaged in rebuttal of the City’s and the developer’s witnesses.  Our attorney, Jeff Eustis, did a great job and we had very compelling witnesses.

For those of you unfamiliar with this process, an Appeal to the Hearing Examiner is similar to a trial. Evidence is presented through witness testimony, exhibits are offered and usually agreed to by both parties to be entered into the record of the hearing. The Examiner (who acts as a judge) absorbs it all, ask his own questions of witnesses periodically, and renders a decision establishing the facts and the application of the law. Under the rules in Seattle, the Examiner’s decision may affirm, reverse, modify, or remand the Department’s decision or other action that is the subject of the appeal.

Because of the complexity of the issues and the length of the hearing, the Examiner asked the parties to prepare closing written briefs summarizing the presentation of facts and the applicable legal standards under which the Examiner should rule.  This document is due June 2nd.  Our attorney will prepare this document summarizing the case from our perspective. The Examiner will issue a decision usually within 14-21 days.

SUMMARY OF OUR CASE BEFORE THE EXAMINER

Livable Phinney is very thankful for our excellent witnesses (all volunteers) who presented our case. They were:

  • Elizabeth Johnson and Laura Reymore, affected adjacent property owners.
  • Dave Crippen, civil/transportation engineer and neighbor testifying on parking study errors.
  • Dr. Roberto Altschul, statistician and friend of Livable Phinney testifying on transit headways.
  • Marcel Bodsky, architect and friend of Livable Phinney testifying on inaccuracy of view studies.
  • Michael Richards and Jan Weldin, members Livable Phinney testifying on parking impacts.
  • Henry Brandis, FINI resident and member Livable Phinney testifying on shadow impacts.
  • Andrew Brick, Metro Transit planner as a fact witness on actual transit headways.

And: Irene Wall, member of Livable Phinney, provided technical assistance to our lawyer in showing many documents and photos on a large-screen monitor in the hearing room.

We appealed on several fronts:

  • SEPA (State Environmental Protection Act) decision based on erroneous and inadequate information,
  • errors in the parking study done by the developer,
  • misuse of the Right Size Parking calculator to estimate parking demand by the development,
  • errors in allowing additional height under the code that protects views (of Green Lake) and additional shadowing on neighboring properties ,
  • misapplication of the code concerning property setbacks,
  • inadequate testing for potential contaminants, and
  • non-compliance with the frequent transit service criteria that is at the root of the zero parking allowance problem.

The latter issue regarding transit and parking has citywide implications. We were able to prove using real time data comparing scheduled with actual headways that the #5 bus is not meeting the specific 15 minute headway criteria that allows zero on-site parking. We proved that reliance on the printed bus schedule (the city’s standard practice) is not accurate.  The developer’s attorney’s tried to diminish this evidence by pointing to the new bus schedule with two added trips. We will address this “challenge” in our closing brief. If the Examiner agrees with the facts we presented, this will have a huge impact on the Phinney Flats development and should lead to changes in how the city permits projects in all urban villages.

SOME OF YOU HAVE ASKED WHY THIS IS SUCH AN EXPENSIVE PROCESS

Owing to widespread neighborhood opposition to the project as designed, and after seeing little change despite four design review sessions and a public meeting at the PNA, we concluded that this appeal was the only way to highlight the problem with this super dense development with zero onsite parking despite acknowledgment that there is no more capacity on our residential streets to absorb more resident’s cars, certainly not from Phinney Flat’s 57 units.

In February, Livable Phinney made a decision that we needed to hire an experienced land use attorney if we were serious about the appeal. Otherwise we would have been outmatched and outmaneuvered by the developer’s attorneys. The amount of time to gather evidence, develop our arguments, identify and prepare witnesses and exhibits is considerable. Many hours of volunteer time contributed to this and we did all that we could to reduce the number of hours Mr. Eustis had to spend, but to be an effective advocate he needed time to immerse himself in the case.

These are the activities that we pay Mr. Eustis, our attorney, for:

  • Time reviewing documents and motions from the developers
  • Preparing documents and filing motions and briefs to the Hearing Examiner and all parties
  • Preparing and submitting the code interpretation request
  • Public Disclosure requests and document production requests
  • Reviewing documents received as requested
  • Preparing questions for witnesses representing both the applicant and appellant
  • Meeting with, interviewing and preparing testimony of our (Appellant) witnesses
  • Preparing for and time spent in a Pre-Hearing Conference
  • Consultations and planning with Livable Phinney personnel
  • Time spent in the actual Hearing – questioning witnesses and responding to the Hearing Examiner and Applicant testimony.
  • Preparation of a closing brief documenting all of the key issues brought up in 4 days of testimony. (Upcoming!)

The appeal was also more complicated because it was actually two appeals – one of the Master Use Permit and SEPA decision, and one of the City’s Interpretation. (An Interpretation is a formal report prepared by city staff explaining how they applied the land use code to a particular project.) This was required and necessitated additional cost ($3,150 alone as a fee to the city for the Interpretation) and more time for preparing and defending preliminary motions.  We have asked the city to refund this unfair fee, but so far the answer is no.

SUPPORTERS HAVE BEEN VERY GENEROUS BUT WE’RE NOT AT THE FINISH LINE YET

Our guesstimate of the cost when we began was $25,000. We were a bit low. So far contributions have just reached $25,000 (Thanks everyone!!) Through April we have incurred just over $23,000 in legal costs. But this does not include the billing for the actual time at the hearing and to prepare the all-important closing brief. We anticipate needing another $12,000 – $15,000 and unfortunately this cost may go higher if we receive a bill from the city for the time they spent defending their interpretation. We will resist paying this fee but that’s complex story for later.

PLEASE, JOIN THE “FUND AN HOUR” CAMPAIGN

Each hour of preparation and hearing cost around $300 for attorney fees and associated expenses. So please, if you can, dig a little deeper and make your contribution to Livable Phinney. Please consider funding one hour of our Appeal with a contribution of $300.  Tell your friends in Ballard, Greenwood, Fremont, Roosevelt, Eastlake, West Seattle, Wallingford – all over Seattle—that we need their support. Our win will be everyone’s victory in restoring some rationality to the amount of parking needed by all the new development that’s coming our way.  It’s great that we have a good transit system, but people still own cars and need to park them where they live.

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THANKS FOR ALL YOUR SUPPORT

Please click above to donate with a credit card, or send a check to Livable Phinney, 6537 Greenwood Ave. Seattle, WA 98103, or drop off a check at the HomeStreet Bank at 73rd and Greenwood.

May 7: Report on the Appeal hearing

Dear Neighbors,

The Appeal of Phinney Flats at 6726 Greenwood Ave N took place before the Hearing Examiner last week, May 2nd, 3rd, 4th and 5th. Because there are so many issues with this project, the Hearing went into a 4th half day. This is unusual.

Livable Phinney presented testimony from expert witnesses on parking studies, bus headways, and view-and-shadow studies. All of our expert witnesses donated their time in preparing for and testifying at the Hearing. These expert witnesses included a Metro employee who provided data about the #5 bus, a Ph.D. statistician who analyzed the data from Metro about the #5 bus not meeting the 15-minute headway requirements, an engineer who testified about the parking studies, and an architect who addressed view blockages.

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Residents of Phinney Ridge testified as to the impacts this project will have on their property and their lives. Neighbors provided photos and also testified about impacts of the absence of parking on the residential neighborhood and nearby commercial businesses.

The issues of inadequate soil testing for contaminants due to the dry cleaners located on the property years ago were raised by residents whose property is adjacent to the site. Shadows that will fall on neighboring properties and privacy that will be lost by building this 4 story building so close to the property line were also addressed. The cumulative impact of this and other permitted projects (1171 units within the Phinney Greenwood Urban Village and along the #5 bus route) were also discussed.

The Hearing Examiner will issue a decision on this in early June. We will keep you posted.

This was a very expensive Hearing that demanded a lot of time in preparation for the Hearing, as well as the three and a half days of the Hearing itself. (There were at least 28 hours at the Hearing alone.) Our lawyer will need to present closing arguments in writing which will result in additional time. We must continue to raise money to meet these substantial costs.

Please forward this to your block email lists, to neighbors who may be unaware, to Facebook friends, and to those in other neighborhoods who may be facing similar issues.

Thank you to all who have already generously donated to meet the costs of this Appeal!

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