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.

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